Tag Archives: 2019

David W Hopper v. Las Cumbres Townhouses Association

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Case Summary

Case ID 20F-H2019013-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-12-29
Administrative Law Judge Antara Nath Rivera
Outcome The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to prove the HOA violated CC&Rs or By-Laws. The dispute centered on a wall built on a neighbor's private property which blocked Petitioner's preferred access path; the judge found Petitioner had no legal right to use that private property.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner David W Hopper Counsel —
Respondent Las Cumbres Townhouses Association Counsel Blake Johnson

Alleged Violations

CC&Rs Article VII Section 3; CC&Rs Article VIII Section 4; By-Laws Article II Section 1(b) and 1(c)

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Petitioner failed to prove the HOA violated CC&Rs or By-Laws. The dispute centered on a wall built on a neighbor's private property which blocked Petitioner's preferred access path; the judge found Petitioner had no legal right to use that private property.

Why this result: Petitioner failed to prove the HOA violated any governing documents; the wall was on private property (not common area) and Petitioner had no legal right to access it.

Key Issues & Findings

HOA Dispute Process Petition regarding wall construction

Petitioner alleged the HOA violated governing documents by approving a neighbor's wall construction that blocked a pathway Petitioner used for access, arguing it impaired maintenance, safety, and property value.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • CC&Rs Article VII Section 3
  • CC&Rs Article VIII Section 4
  • By-Laws Article II Section 1(b)
  • By-Laws Article II Section 1(c)

Video Overview

Audio Overview

Decision Documents

20F-H2019013-REL Decision – 761441.pdf

Uploaded 2026-04-24T11:23:25 (106.4 KB)

20F-H2019013-REL Decision – 761441.pdf

Uploaded 2026-02-11T06:41:07 (106.4 KB)

Administrative Law Judge Decision: Hopper vs. Las Cumbres Townhouses Association

Executive Summary

On December 29, 2019, Administrative Law Judge Antara Nath Rivera issued a decision in the matter of David W Hopper vs. Las Cumbres Townhouses Association (No. 20F-H2019013-REL). The dispute centered on the Petitioner’s allegation that the Homeowners Association (HOA) violated community governing documents by approving the construction of a wall on a neighbor’s private property. The Petitioner argued that this wall obstructed a pathway he and his wife used for home maintenance, safety access, and health-related movement, subsequently devaluing his property.

The Respondent, Las Cumbres Townhouses Association, maintained that the wall was constructed solely on private property for erosion mitigation, was approved unanimously by the Board, and conformed to the community’s design scheme. The Judge ruled in favor of the Respondent, dismissing the petition on the grounds that the Petitioner failed to establish any violation of the Declaration of Covenants, Conditions, Restrictions and Easements (CC&Rs) or the Association By-Laws by a preponderance of the evidence.

Detailed Analysis of Key Themes

Property Rights vs. Customary Use

A central theme of the case is the distinction between a legal right of access and a neighborly accommodation. The Petitioner had grown accustomed to using a flat pathway through his neighbor’s patio to haul large items and provide access for workers. However, the evidence established that this area was not a "common area" but private property. The Judge concluded that while the Petitioner had enjoyed the use of the patio with the neighbor’s tacit consent, he was not entitled to "continued uninterrupted use" of property that did not belong to him.

Health, Safety, and Property Maintenance

The Petitioner raised several concerns regarding the adverse effects of the wall:

  • Maintenance: He argued that large windows for his renovation could no longer be brought through the back, and would not fit through the front door.
  • Safety: He claimed the wall removed a critical fire exit route.
  • Health: He noted that his wife suffered from a condition similar to vertigo, making the existing, steeper common area pathway behind the home unsafe for her.

The Respondent successfully countered that other townhomes with similar layouts had replaced large windows without using neighbors' yards. Furthermore, the Association testified that a common area walkway did exist behind the home, and although steep, it was the designated area for resident use.

HOA Board Authority and Governance

The Association demonstrated that its actions were consistent with its governing documents. The Board held a meeting on March 26, 2019, where they unanimously approved the neighbor's wall as a measure to mitigate erosion. The Judge found that the Association acted within its rights to approve plans that were in conformity with the community’s "common scheme and design."

Legal Standards of Proof

The case underscores the "preponderance of the evidence" standard required in administrative hearings. To prevail, the Petitioner needed to prove that his contentions were "more probably true than not." The Judge determined that the Petitioner did not provide sufficient evidence that the HOA’s approval of the wall violated specific provisions regarding health, safety, welfare, or property value protection.

Summary of Alleged Violations

The following table outlines the specific community documents cited by the Petitioner and the associated legal findings.

Document & Section Provision Summary Judicial Finding
CC&Rs Art. VII, Sec. 3 Owners are responsible for the maintenance and repair of their individual units. Respondent did not violate this by approving a wall on a different private property.
CC&Rs Art. VIII, Sec. 4 Owners shall not impair structural soundness, easements, or adversely affect other units. Petitioner failed to establish that the wall on the neighbor’s property legally impaired his property rights.
By-Laws Art. II, Sec. 1(b) Purpose of the Association is to promote health, safety, and welfare of residents. The Association’s approval of erosion mitigation on private property did not violate this purpose.
By-Laws Art. II, Sec. 1(c) Purpose of the Association is to protect property values for each dwelling. Petitioner failed to prove the wall legally decreased property value relative to HOA obligations.

Important Quotes with Context

On the Definition of Preponderance of the Evidence

"A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not… evidence that has the most convincing force; superior evidentiary weight."

  • Context: This quote establishes the legal threshold the Petitioner failed to meet during the hearing.
On Private Property Rights

"Petitioner was not entitled to continued uninterrupted use of his neighbor’s private property… Petitioner failed to present evidence that he had a legal right of access to his neighbor’s patio as a pathway."

  • Context: The Judge used this to clarify that previous use of the neighbor's yard did not grant a permanent easement or right of way.
On Association Responsibility

"While Respondent may have affected Petitioner’s convenience when it approved plans to build the wall, it did not violate any rules and procedures."

  • Context: This distinguishes between an HOA action that causes an inconvenience and one that constitutes a legal violation of community documents.
On Notice of Construction

"Petitioner argued lack of notice of the construction of the wall. However, Petitioner did not cite to any CC&Rs or By-Laws violated by Respondent with respect to lack of notice."

  • Context: The Judge noted that while the Petitioner felt slighted by the lack of communication, there was no documented legal requirement for the HOA to provide such notice for construction on a neighbor's private lot.

Actionable Insights

  1. Verification of Property Boundaries: Homeowners should not rely on the temporary use of neighboring land for maintenance or access. Legal access is strictly defined by property lines and recorded easements, not by historical practice or neighborly permission.
  2. HOA Approval Discretion: HOA Boards have the authority to approve modifications on private lots—such as walls for erosion control—as long as they conform to the community’s design scheme and follow established procedural rules.
  3. Burden of Proof in Disputes: In a petition against an HOA, the burden lies entirely with the Petitioner to link an action (like the approval of a wall) to a specific violation of the CC&Rs or By-Laws. General claims of "diminished property value" or "inconvenience" are insufficient without a direct link to a violated regulation.
  4. Common Area vs. Private Property: Residents must distinguish between common areas maintained for community use and private property. In this case, the existence of a "steep" common area walkway satisfied the community's requirement for access, regardless of whether a flatter, private alternative was preferred.

Study Guide: Hopper v. Las Cumbres Townhouses Association (Case No. 20F-H2019013-REL)

This study guide provides a comprehensive overview of the administrative hearing between David W. Hopper and the Las Cumbres Townhouses Association. It examines the legal standards, the specific community documents at the center of the dispute, and the evidentiary findings that led to the dismissal of the petition.

Key Concepts and Case Overview

1. The Nature of the Dispute

The case involves a homeowner (Petitioner) who filed a dispute against his Homeowners Association (Respondent) following the construction of a wall on a neighbor’s property. The Petitioner alleged that the wall—approved by the Association Board—blocked a pathway he previously used for home maintenance, emergency egress, and general access to the front of the community.

2. Legal Standards and Burden of Proof

The hearing was conducted under Arizona Revised Statutes (A.R.S. § 32-2199 et seq.), which allows for the Office of Administrative Hearings to resolve disputes concerning planned community documents.

  • Burden of Proof: The Petitioner bears the burden of proving that the Association committed the alleged violations.
  • Preponderance of the Evidence: This is the evidentiary standard used. It is defined as proof that convinces the trier of fact that a contention is "more probably true than not." It represents the "greater weight of the evidence" or "superior evidentiary weight."
3. Governing Community Documents

The dispute centered on the interpretation of four specific sections of the community’s governing documents:

  • CC&R Article VII, Section 3 (Exterior Maintenance): Establishes that all maintenance and repair of individual units are the sole obligation and expense of the individual owners.
  • CC&R Article VIII, Section 4 (Interior and Other Maintenance): Prohibits owners from performing acts that impair the structural soundness of dwellings, impair easements, or adversely affect other units or owners.
  • Bylaws Article II, Section 1(b): States the Association’s purpose is to promote the health, safety, and welfare of residents.
  • Bylaws Article II, Section 1(c): States the Association’s purpose is to protect property values for each dwelling and the Association.

Short-Answer Practice Questions

1. What specific physical structure triggered the filing of the petition? The construction of an adobe wall on the Petitioner’s neighbor's yard, which blocked a flat pathway the Petitioner had been using to access his property and the guest parking lot.

2. Why did the Petitioner argue that the wall affected his wife’s safety and welfare? His wife suffers from a medical condition similar to vertigo. The wall blocked the flat pathway through the neighbor's patio, which was her only safe exit in the event of a fire, as the alternative common area path consisted of rough and steep terrain.

3. What reason did the Association Board provide for approving the neighbor's wall? The Board testified that the wall was part of a project intended to mitigate erosion on the neighbor’s property. They also noted the wall was in conformity with the community’s common scheme and design.

4. How did the Petitioner’s real estate agent contribute to his argument? The agent informed the Petitioner that the property had lost value because the lack of access to the west side of the home would now have to be disclosed to future buyers.

5. What was the critical finding regarding the ownership of the pathway at issue? The Administrative Law Judge determined that the pathway was located on the neighbor’s private property, not in a common area. Therefore, the Petitioner had no legal right of access to it.

6. Did the Association violate the notice requirements according to the judge? No. While the Petitioner argued he was not given notice of the construction, the judge found he failed to cite any specific CC&R or Bylaw provision that the Association violated regarding notice.

Essay Prompts for Deeper Exploration

1. Property Rights vs. Historical Use

Analyze the distinction between a "legal right of access" and "permissive use" as presented in this case. In your response, discuss how the Petitioner’s history of using the neighbor’s patio for home renovations and access influenced his expectations, and explain why the law prioritized the neighbor’s private property rights over the Petitioner’s established routine.

2. The Limits of HOA Responsibility

The Petitioner cited Bylaw provisions regarding the promotion of "health, safety, and welfare" and the protection of "property values" to argue that the Association should not have approved the wall. Evaluate the judge’s conclusion that these broad purpose statements did not obligate the Association to prevent the construction. To what extent should an HOA be held responsible for the indirect effects of one member’s private property improvements on another member?

3. Assessing Preponderance of the Evidence in HOA Disputes

Using the definitions provided in the case, discuss the "Preponderance of the Evidence" standard. Why did the Petitioner fail to meet this standard despite providing testimony regarding his wife’s medical condition, property value concerns, and maintenance difficulties? Focus your analysis on the relationship between the facts presented and the specific language of the CC&Rs and Bylaws.

Glossary of Important Terms

  • Administrative Law Judge (ALJ): An official who presides over hearings and adjudicates disputes involving government agencies or specific statutory processes (in this case, the Arizona Department of Real Estate).
  • Bylaws: The rules and regulations adopted by an organization (like an HOA) for its internal administration and management.
  • CC&Rs (Covenants, Conditions, Restrictions, and Easements): A legal document that outlines the rules for a planned community and the rights and obligations of the homeowners and the association.
  • Common Area: Land or amenities within a development that are owned or managed by the HOA for the use and enjoyment of all residents.
  • Egress: A way out or a point of exit.
  • Mitigation: The action of reducing the severity, seriousness, or painfulness of something (e.g., erosion mitigation).
  • Petitioner: The party who initiates a lawsuit or petition (David W. Hopper).
  • Preponderance of the Evidence: The standard of proof in most civil cases, requiring that the evidence be "more likely than not" to support the claim.
  • Respondent: The party against whom a petition is filed or an appeal is taken (Las Cumbres Townhouses Association).
  • Structural Soundness: The ability of a building or structure to withstand its design loads and remain stable without failure.

When Your Shortcut Ends: Navigating HOA Disputes and Property Rights

The Wall Between Neighbors

In the world of planned developments, there is a fine—and often invisible—line between neighborly convenience and absolute property rights. For years, many residents operate on informal licenses, such as a borrowed patch of lawn or a "shortcut" across a neighbor’s lot. However, as an HOA consultant, I often see these "understandings" crumble the moment a permanent structure is erected.

The case of David W. Hopper vs. Las Cumbres Townhouses Association serves as a stark reminder of this reality. The dispute involved a homeowner who lost a preferred backyard access route when his neighbor built a board-approved wall. This case illustrates a fundamental truth in community living: your personal convenience does not equate to a legal right, and the governing documents—the CC&Rs and By-Laws—are the final word on what you are actually entitled to.

The Dispute: A Tale of Two Properties

The conflict began shortly after David Hopper purchased his townhome in the 14-unit Las Cumbres community in September 2018. During an extensive renovation, Hopper and his contractors utilized what they described as a "shortcut"—a flat pathway used to haul large construction materials and access guest parking. Crucially, this "pathway" was not a common area; it was the neighbor’s private patio.

For months, the neighbor permitted this use by consent. However, in April 2019, the neighbor began construction on an adobe wall designed to mitigate erosion on their private lot. The wall, which had been formally approved by the Association, completely blocked Hopper’s access to the guest parking lot and the side of his home. Having relied on the neighbor's patio as a primary access point, Hopper filed a petition with the Arizona Department of Real Estate to have the wall addressed.

The Homeowner’s Case: Maintenance, Safety, and Value

The Petitioner (Hopper) alleged that the Association violated CC&Rs Article VII (Section 3), Article VIII (Section 4), and By-Laws Article II, Section 1(b) and Section 1(c). Note that a significant procedural hurdle existed: the official Notice of Hearing failed to reference Article VII, Section 3, despite Hopper including it in his initial petition—a common pitfall in administrative litigation.

Hopper’s arguments rested on three main pillars:

  • Maintenance Obstacles: Hopper claimed the wall prevented essential upkeep, specifically stating a window company could not transport large replacement windows to the back of the property because they would not fit through the home’s interior.
  • Health and Safety Concerns: Citing By-Laws Article II, Section 1(b), Hopper argued the wall created a safety hazard for his wife, who suffers from a vertigo-like condition. He contended that the steep, rough terrain of the designated common area was impassable for her, leaving them without a flat emergency exit.
  • Property Value Impact: Invoking By-Laws Article II, Section 1(c), Hopper presented a real estate agent’s opinion that the home’s value would decrease because future buyers would need a disclosure regarding the lack of side-access.
The Association’s Defense: Private Rights vs. Common Areas

The Association maintained that the Board acted within its authority to approve a functional improvement (erosion mitigation) on a private lot. Their defense centered on the fact that the Petitioner was claiming a right to land he did not own.

Petitioner Claims Respondent Evidence
The wall prevents necessary maintenance (windows). Evidence showed other townhomes in the community with identical layouts replaced large windows without using the neighbor’s patio.
The Association violated health and safety access. A designated common area walkway exists behind the home. While steep, it is the community’s legal path for residents to navigate the area.
The wall adversely affects property value/integrity. The wall was a necessary erosion mitigation project that was unanimously approved and conforms to the community's common design scheme.
The "shortcut" was a long-standing access point. The area is private property (a patio), not a common area. Use was by neighborly consent, not by right or easement.
The Ruling: Why the Case Was Dismissed

Administrative Law Judge Antara Nath Rivera dismissed the petition, ruling that Hopper failed to meet the "Preponderance of the Evidence" standard. The decision hinged on a vital legal distinction: Consent vs. Right.

The judge found that while the neighbors were "nice enough" to allow Hopper access for a time, that permission constituted a revocable license, not a permanent easement. The court emphasized that the Petitioner was well aware of the property lines, the closeness of the units, and the common scheme of the 1972 development when he purchased the home.

Key findings included:

  • No Adverse Effect: Under CC&R Art. VIII, Sec. 4, an owner cannot "adversely affect" others. The judge ruled that building a wall on one’s own property at one’s own expense—following Board approval—does not constitute an "adverse effect" on a neighbor's property rights.
  • Maintenance Precedent: The maintenance argument failed because evidence proved that other residents successfully performed similar repairs without trespassing on neighboring patios.
  • Document Integrity: The judge ruled that the Association did not violate CC&Rs Art. VII or VIII, nor By-Laws Art. II, Section 1(b) and 1(c).
Key Takeaways for Homeowners and HOAs

This case serves as a masterclass in the principle of Caveat Emptor (Buyer Beware) within planned communities.

  1. Verify Property Lines: Never assume that a convenient path is a legal right. If your ability to maintain your home depends on walking across a neighbor's patio, you are operating on borrowed time.
  2. License is Not an Easement: Neighborly consent (a license) can be revoked at any time. Unless an access right is recorded as an easement in the CC&Rs or a deed, it is not legally enforceable.
  3. The Burden of Proof is High: To win an HOA dispute, you must prove a specific violation of the governing documents. Personal hardship, medical conditions, or a loss of convenience do not empower a judge to override a neighbor’s private property rights.

Pro-Tip: Influence happens at the Board level, not after the concrete is poured. The wall in this case was discussed and unanimously approved at a board meeting on March 26, 2019. Active participation in Board meetings is your only opportunity to object to projects that may impact your "shortcut" before they become permanent fixtures.

Conclusion

The final decision, rendered on December 29, 2019, underscored the finality of the Board's authority and the sanctity of private property lines. While community harmony is the goal of every HOA, that harmony must be built on the foundation of the governing documents. As this case proves, when the "neighborly understanding" ends, the law will always side with the recorded property rights over personal convenience.

Case Participants

Petitioner Side

  • David W Hopper (Petitioner)
    Appeared on his own behalf; owner of the townhome
  • Myra Hopper (Witness)
    Petitioner's wife

Respondent Side

  • Blake Johnson (HOA attorney)
    Appeared on behalf of Las Cumbres Townhouse Association
  • Robert Sorock (Board President)
    Las Cumbres Townhouse Association Board
    Testified at hearing
  • Kathleen Boyle (Board Secretary)
    Las Cumbres Townhouse Association Board
    Testified at hearing
  • Nathan Tennyson (attorney)
    BROWN/OLCOTT, PLLC
    Listed on the mailing distribution list for the law firm representing the Respondent

Neutral Parties

  • Antara Nath Rivera (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge who presided over the hearing and signed the decision
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Received electronic transmission of the order

Jeffrey S Audette vs. Sun Harbor Community Association dba Desert

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Case Summary

Case ID 20F-H2019009-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-12-25
Administrative Law Judge Velva Moses-Thompson
Outcome The ALJ found that the Petitioner failed to prove the HOA violated A.R.S. § 33-1817(B)(3) or the CC&Rs. The HOA reasonably determined the Petitioner's unauthorized construction of block walls was inconsistent with architectural guidelines regarding setbacks and view preservation.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jeffrey S. Audette Counsel Mark J. Bainbridge
Respondent Sun Harbor Community Association dba Desert Harbor Homeowners Association Counsel Lauren Vie

Alleged Violations

A.R.S. § 33-1817(B)(3)

Outcome Summary

The ALJ found that the Petitioner failed to prove the HOA violated A.R.S. § 33-1817(B)(3) or the CC&Rs. The HOA reasonably determined the Petitioner's unauthorized construction of block walls was inconsistent with architectural guidelines regarding setbacks and view preservation.

Why this result: The Petitioner modified his property without required prior approval. The modification (block walls in a setback area) violated specific architectural guidelines. The Petitioner provided no evidence that the HOA had not enforced these guidelines against other homeowners (selective enforcement).

Key Issues & Findings

Unreasonable withholding of architectural approval

Petitioner alleged the HOA unreasonably denied his request to replace wrought iron fences with block walls and inconsistently enforced rules.

Orders: Petition dismissed; Respondent deemed prevailing party.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1817(B)(3)
  • CC&R Article IV, Section 2(a)

Video Overview

Audio Overview

Decision Documents

20F-H2019009-REL Decision – 760862.pdf

Uploaded 2026-04-24T11:23:04 (87.1 KB)

20F-H2019009-REL Decision – 760862.pdf

Uploaded 2026-01-27T21:17:38 (87.1 KB)

Administrative Law Judge Decision: Jeffrey S. Audette v. Sun Harbor Community Association

Executive Summary

This briefing document analyzes the administrative hearing and subsequent decision in the matter of Jeffrey S. Audette v. Sun Harbor Community Association dba Desert Harbor Homeowners Association (No. 20F-H2019009-REL). The dispute arose when the Petitioner, Jeffrey S. Audette, replaced wrought iron fencing with five-foot-high block walls on his lakefront property without obtaining prior authorization from the Respondent, Sun Harbor Community Association (Sun Harbor).

The Petitioner alleged that the Association unreasonably denied his construction plans and practiced inconsistent enforcement of community rules. However, the Administrative Law Judge (ALJ) determined that Sun Harbor acted reasonably and within the scope of its governing documents. The ALJ found that the Petitioner failed to meet the burden of proof required to establish selective enforcement or a violation of Arizona law. Consequently, the petition was dismissed, and Sun Harbor was deemed the prevailing party.

Detailed Analysis of Key Themes

1. Procedural Non-Compliance and Prior Approval

A central theme of the case is the Petitioner’s failure to adhere to the procedural requirements set forth in the Sun Harbor Covenants, Conditions, and Restrictions (CC&Rs).

  • Unauthorized Modification: In February 2018, the Petitioner replaced two wrought iron fences with five-foot-high block walls.
  • Lack of Prior Consent: This construction occurred before the Petitioner requested permission from the Sun Harbor Architectural Committee.
  • Retrospective Denial: When the Petitioner eventually submitted a request in March 2018, the Committee denied it, and the Association upheld this denial upon appeal.
2. Architectural Guidelines and Setback Restrictions

The decision highlights specific technical violations regarding the placement and height of the new structures.

  • The 15-Foot Setback Rule: Sun Harbor Architectural Guidelines prohibit any structure, fence, or shrub with a solid height greater than three feet within the 15-foot setback of the concrete shoreline.
  • Violation Specifics: The Petitioner’s block walls were five feet high and located within the restricted 15-foot lake lining setback.
  • Preservation of Harmony and Views: Testimony from Association representatives established that the block walls were "inharmonious with the surroundings" and "obscured the view of the lake" for other homeowners, specifically those on lots 1 through 9.
3. Standards of Evidence and Selective Enforcement

The Petitioner attempted to defend the modification by claiming that Sun Harbor inconsistently enforced its rules.

  • Burden of Proof: Under Arizona Administrative Code R2-19-119, the party asserting a claim (the Petitioner) bears the burden of proof by a preponderance of the evidence.
  • Insufficient Evidence: While the Petitioner provided photographs of other properties allegedly in violation of the three-foot height limit, he failed to provide written or oral testimony proving that the Association had not enforced the guidelines against those specific homeowners.
  • The Precedent Concern: The Association testified that its denial was partly based on a desire to avoid creating a precedent that would allow other homeowners to replace iron fences with high block walls.

Important Quotes with Context

Quote Context
"The Committee will take into consideration the suitability of the proposed alteration… the harmony thereof with the surroundings and the effect of the alteration as planned on any adjacent or neighboring property." Found in the Sun Harbor Architectural Guidelines (Sept 2002), this establishes the Association's broad authority to judge projects based on aesthetics and community impact.
"No structure, fence or shrubs with a solid height greater than 3 feet are allowed in the 15-foot setback of the concrete shoreline, with the exception of approved docks." The specific rule from the Architectural Guidelines that the Petitioner's five-foot wall violated.
"The CC&Rs are a contract between the parties and the parties are required to comply with its terms." A legal conclusion citing Johnson v. The Pointe Community Association, reinforcing that homeowners are legally bound by the association's governing documents.
"An association shall not unreasonably withhold approval of a construction project’s architectural plans." A reference to A.R.S. § 33-1817(B)(3), which serves as the legal standard for determining if an HOA's denial was lawful.
"A preponderance of the evidence is: The greater weight of the evidence… sufficient to incline a fair and impartial mind to one side of the issue rather than the other." The legal standard used by the ALJ to evaluate the claims, citing Black’s Law Dictionary.

Actionable Insights

For Community Associations (HOAs)
  • Consistency in Documentation: The Association's success in this matter was tied to having clear, written Architectural Guidelines that specified height and setback requirements.
  • Aesthetic Justification: Boards should document how a non-compliant structure impacts the "harmony" of the community or the views of other residents, as these are defensible reasons for denial under Arizona law.
  • Precedent Awareness: Associations may validly deny a request if granting it would set an undesirable precedent for the community, provided the denial is based on existing CC&Rs.
For Homeowners and Members
  • The "Prior Approval" Mandate: Homeowners must obtain written approval before beginning construction. Attempting to seek approval after the fact (retrospective approval) puts the homeowner at a significant legal and financial disadvantage.
  • Sub-Association vs. Master Association: Approval from a sub-association does not automatically grant approval from the master association. Homeowners must ensure they have consent from all relevant governing bodies.
  • Substantiating Selective Enforcement: To successfully argue selective enforcement, a homeowner must provide more than just photos of other violations; they must prove that the association actively chose not to enforce rules in those specific instances while enforcing them against the homeowner.
Legal and Regulatory Takeaways
  • Preponderance of Evidence: In administrative hearings regarding HOA disputes, the petitioner must provide convincing force to their claims. Merely showing that neighbors approve of a change is insufficient to override the contractual obligations of the CC&Rs.
  • Contractual Nature of CC&Rs: The courts and administrative offices treat CC&Rs as unambiguous contracts. If the terms are clear, they will be enforced as written to give effect to the intent of the parties.

Study Guide: Audette v. Sun Harbor Community Association

This study guide provides a comprehensive overview of the administrative hearing between Jeffrey S. Audette (Petitioner) and Sun Harbor Community Association (Respondent). It explores the legal obligations of homeowners within an association, the authority of architectural committees, and the standards of proof required in administrative law.

Key Concepts and Case Overview

1. Architectural Control and Prior Approval

Under Sun Harbor’s Covenants, Conditions, and Restrictions (CC&R) Article IV, Section 2(a), homeowners are strictly required to obtain written notification and approval from the Architectural Committee before undertaking any structural changes. This ensures that alterations are suitable in terms of materials, site location, and harmony with the surrounding environment.

2. Specific Property Restrictions

The Sun Harbor Architectural Guidelines (adopted September 2002) establish specific limitations for waterfront properties:

  • The 15-Foot Setback: No structure, fence, or shrub with a solid height greater than 3 feet is permitted within the 15-foot setback of the concrete shoreline.
  • Exceptions: The only structures generally exempt from this height restriction are approved docks.
3. Legal Status of CC&Rs

In Arizona, CC&Rs are viewed as a legal contract between the association and the property owner. Courts and administrative bodies must enforce these documents according to their clear and unambiguous terms to give effect to the intent of the parties involved.

4. Burden of Proof in Administrative Hearings

In an administrative hearing, the party asserting a claim (the Petitioner) bears the "burden of proof." The standard used is a "preponderance of the evidence," meaning the evidence presented must have the most convincing force and demonstrate that the claim is more likely true than not.

5. Selective Enforcement Claims

A common defense in HOA disputes is the allegation of selective enforcement—the idea that the association is enforcing rules against one member while ignoring similar violations by others. To succeed, the petitioner must provide concrete evidence (written or oral) that the association knowingly failed to enforce guidelines in those other instances.

Short-Answer Practice Questions

1. What specific modification did Mr. Audette make to his property that led to the violation notice?

Mr. Audette removed two wrought iron fences and replaced them with 5-foot high block walls.

2. Why did the Sun Harbor Architectural Committee deny Mr. Audette’s retroactive request for the block walls?

The request was denied because the walls exceeded the 3-foot height limit within the 15-foot setback and were deemed inharmonious with the surroundings, specifically obscuring the view of the lake.

3. Which state agency has authority over disputes involving homeowners' associations in this case?

The Arizona Department of Real Estate (ADRE).

4. According to Black’s Law Dictionary, as cited in the case, how is "preponderance of the evidence" defined?

It is the greater weight of the evidence; evidence that has the most convincing force and inclines a fair and impartial mind to one side of the issue.

5. What was Mr. Audette's argument regarding the visibility of his block walls?

He asserted that no other homeowners could see the walls except for his immediate neighbors to the left and right, both of whom approved of the modification.

6. What is the association’s legal obligation regarding the approval of architectural plans under A.R.S. § 33-1817(B)(3)?

An association shall not unreasonably withhold approval of a construction project’s architectural plans.

7. Why did the Administrative Law Judge (ALJ) reject Mr. Audette’s claim of selective enforcement?

Mr. Audette provided no written or oral testimony to establish that the association had failed to enforce the guidelines against other homeowners who he claimed were also in violation.

Essay Prompts for Deeper Exploration

  1. Contractual Obligations vs. Property Rights: Analyze the legal argument that CC&Rs serve as a binding contract. How does this contractual nature limit a homeowner's ability to modify their property, even if they have the support of their immediate neighbors?
  2. The "Harmony" Standard in Architectural Review: The Sun Harbor Architectural Committee is tasked with considering the "harmony" of a proposed change with its surroundings. Discuss the subjective and objective elements of this standard as applied to the view of Desert Harbor Lake and the precedent of moving from wrought iron to solid block walls.
  3. Evaluating Selective Enforcement: Mr. Audette provided photographs of other properties to argue that the association inconsistently enforced its rules. Explain the evidentiary gap between showing "other violations exist" and proving "selective enforcement" according to the ALJ's findings.

Glossary of Important Terms

Term Definition
Administrative Law Judge (ALJ) A professional hearing officer who presides over administrative proceedings and issues decisions based on findings of fact and conclusions of law.
A.R.S. § 33-1817(B)(3) The Arizona Revised Statute stipulating that homeowners' associations cannot unreasonably withhold approval for architectural plans.
CC&R Covenants, Conditions, and Restrictions; the governing documents that dictate the rules and limitations for a planned community.
Inharmonious A term used by the association to describe a structure that does not fit aesthetically or functionally with the surrounding properties or environment.
Petitioner The party who initiates a lawsuit or petition; in this case, Jeffrey S. Audette.
Preponderance of the Evidence The standard of proof in civil and administrative cases, requiring that a fact be more likely than not to be true.
Respondent The party against whom a petition is filed; in this case, Sun Harbor Community Association.
Setback The minimum distance a structure must be kept from a property line, shoreline, or other defined boundary.
Sub-association A secondary homeowners' association governing a specific subset of homes within a larger master association.

The Price of a View: Lessons from a Waterfront HOA Dispute

1. Introduction: The High Cost of Bypassing the Board

For many residents in planned communities, the home is a castle, but the CC&Rs (Covenants, Conditions, and Restrictions) are the contractual bedrock that defines how that castle can be modified. When personal preference collides with community standards, the resulting neighborly friction often shifts from the front yard to the courtroom. A homeowner attempting to enhance their privacy or "improve" their property without following established protocols can quickly find themselves in a legal quagmire, proving that the cost of a better view is far higher when it bypasses the board.

The case of Jeffrey S. Audette vs. Sun Harbor Community Association (doing business as Desert Harbor Homeowners Association) serves as a quintessential cautionary tale. This dispute centered on a waterfront property owner who replaced open wrought iron fences with solid five-foot-high block walls within a restricted setback area—all without securing the necessary prior approval from the Master Association.

2. The Timeline of a Conflict

The path from a backyard renovation to an administrative judgment is often paved with missed opportunities for compliance. The chronological breakdown of this dispute highlights a nearly two-year struggle:

  • February 2018: Without obtaining prior permission, Mr. Audette removes two wrought iron fences and replaces them with five-foot-high block walls located within 15 feet of the lake lining setback.
  • March 2018: Mr. Audette submits a retroactive construction plan to the Sun Harbor Architectural Committee. The committee denies the request, leading the homeowner to file an internal appeal.
  • May 9, 2018: Following the denial of his appeal, Sun Harbor issues a formal violation notice citing CC&R Article IV, Section 2(a) for the unauthorized conversion of the fences.
  • September 4, 2019: Mr. Audette files a petition with the Arizona Department of Real Estate (ADRE), alleging that the Association improperly denied his request and was inconsistent in its enforcement of community rules.
  • December 5, 2019: The matter reaches a formal evidentiary hearing at the Office of Administrative Hearings.
3. The Homeowner’s Defense: Permission vs. Process

Mr. Audette’s defense was built on the argument that the Association’s denial was unreasonable and discriminatory. Notably, Mr. Audette had previously served on the Sun Harbor board, making this a case where a former "insider" found himself at odds with the very process he once helped oversee—a reminder that personal history does not exempt one from current regulations. His primary arguments included:

  • Sub-Association Approval: He claimed he had secured permission from his specific sub-association before construction commenced.
  • Immediate Neighbor Consent: He testified that the neighbors directly to his left and right approved of the new block walls.
  • Past Board Practices: Drawing on his experience as a former board member, he argued that the Association traditionally granted requests that had already received a "green light" from a sub-association.
  • Limited Visibility: He contended that the walls were only visible to his immediate neighbors and did not negatively impact the community at large.
  • Selective Enforcement Claims: To meet the high bar of selective enforcement, he submitted photographs of other properties in the community that he alleged were also in violation of height restrictions.
4. The Association’s Stand: Aesthetics and Regulations

The Association stood firmly on the "Sun Harbor Architectural Guidelines" adopted in September 2002. These rules exist to preserve the visual "harmony" of the community. Per Finding of Fact #17, the Architectural Committee is required to consider specific factors including the suitability of the alteration, the materials used, the topography and finished grade elevation of the site, and the effect on adjacent properties.

The Association focused heavily on the specific restrictions for shoreline lots:

"No structure, fence or shrubs with a solid height greater than 3 feet are allowed in the 15-foot setback of the concrete shoreline, with the exception of approved docks." (Sun Harbor Architectural Guidelines, pg. 11).

The Association argued that while the guidelines allowed for 3-foot structures, Mr. Audette’s 5-foot walls were fundamentally inharmonious. Testimony from the Association emphasized that these walls obscured lake views for residents on lots 1 through 9. Furthermore, the board expressed a valid concern regarding precedent: allowing one homeowner to swap transparent wrought iron for solid block would fundamentally alter the character of the waterfront for everyone.

5. The Legal Verdict: Why the HOA Prevailed

Administrative Law Judge Velva Moses-Thompson ruled in favor of the Association, dismissing the petition. The legal reasoning offers a masterclass in HOA law:

  • The Burden of Proof: In this administrative venue, the Petitioner (Mr. Audette) bore the burden of proving his case by a "Preponderance of the Evidence."
  • Defining the Standard: The Judge utilized Black’s Law Dictionary to define this standard as: "The greater weight of the evidence… evidence that has the most convincing force; superior evidentiary weight that… is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other."
  • Failure to Prove Unreasonableness: Under A.R.S. § 33-1817(B)(3), an association cannot "unreasonably withhold" approval. However, the legal reality was not that the HOA proved it was right, but that Mr. Audette failed to prove the HOA acted unreasonably. The Association’s adherence to its height and harmony guidelines was found to be a reasonable exercise of its authority.
  • The Selective Enforcement Trap: The Judge found that Mr. Audette failed to establish selective enforcement. Simply providing photos of other violations is insufficient; a petitioner must prove that the Association knowingly allowed those violations to persist without taking enforcement action.
6. Key Takeaways for Homeowners and Boards

This case yields several vital insights for those living in or managing common-interest communities:

  1. Prior Approval is Mandatory: Never assume that a sub-association’s "okay" or a neighbor’s "thumbs up" overrides the Master Association’s authority. Process must always precede construction.
  2. Respect the Setbacks: Shoreline and common-area setbacks are often the most strictly protected zones in a community. In this case, the distinction between the allowed 3-foot height and the offending 5-foot wall was the difference between a compliant project and a legal violation.
  3. The Evidence Gap in Selective Enforcement: To successfully argue selective enforcement, a homeowner must provide more than just pictures of other non-compliant homes. You must provide written or oral testimony proving that the board was aware of those violations and failed to act. Without proof of board inaction, photos are just pictures of other people’s potential problems.
  4. Process Over Personal History: Even former board members are subject to the current rules. Familiarity with the system is no substitute for following the current, written architectural guidelines.
7. Final Summary

The integrity of a community’s aesthetic depends on the consistent application of its governing documents. As Audette vs. Sun Harbor illustrates, the CC&Rs are not mere suggestions but binding contracts. Bypassing the architectural review process is a high-risk gamble that can result in expensive litigation, the dismissal of your claims, and the eventual requirement to tear down the very improvements you sought to enjoy. Following the rules from the start is the only guaranteed way to protect both your property and your peace of mind.

Case Participants

Petitioner Side

  • Jeffrey S. Audette (Petitioner)
    Sun Harbor Community Association (Member)
    Homeowner; former board member
  • Mark J. Bainbridge (attorney)
    Appeared on behalf of Petitioner

Respondent Side

  • Lauren Vie (attorney)
    Appeared on behalf of Respondent
  • Yvette Rushford (witness)
    Testified for Sun Harbor
  • Bud Levey (witness)
    Testified for Sun Harbor
  • Beth Mulcahy (attorney)
    Mulcahy Law Firm, PC
    Listed in distribution list

Neutral Parties

  • Velva Moses-Thompson (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Received electronic transmission of order

Robert S. Nickell v. Holiday Harbour Property Owners Association

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Case Summary

Case ID 20F-H2019008-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-12-09
Administrative Law Judge Thomas Shedden
Outcome The Administrative Law Judge dismissed the petition, ruling that the Association did not violate A.R.S. § 33-1817(B)(3). The Association's enforcement of the height restriction was reasonable as they allowed for excavation to meet height requirements, and the Petitioner did not demonstrate the necessary hardship for a waiver.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Robert S. Nickell Counsel —
Respondent Holiday Harbour Property Owners Association Counsel —

Alleged Violations

A.R.S. § 33-1817(B)(3)

Outcome Summary

The Administrative Law Judge dismissed the petition, ruling that the Association did not violate A.R.S. § 33-1817(B)(3). The Association's enforcement of the height restriction was reasonable as they allowed for excavation to meet height requirements, and the Petitioner did not demonstrate the necessary hardship for a waiver.

Why this result: Petitioner failed to meet the burden of proof to show the Association acted unreasonably or that the height restriction caused extreme hardship.

Key Issues & Findings

Unreasonable withholding of architectural design approval

Petitioner alleged the Association unreasonably denied his request to build a home 17 feet in height, violating the 15-foot limit in the CC&Rs, and failed to grant a variance for hardship.

Orders: The petition is dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1817(B)(3)
  • CC&Rs Section 6
  • CC&Rs Section 11

Video Overview

Audio Overview

Decision Documents

20F-H2019008-REL Decision – 757400.pdf

Uploaded 2026-04-24T05:35:18 (107.8 KB)

20F-H2019008-REL Decision – 757626.pdf

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20F-H2019008-REL Decision – 757400.pdf

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20F-H2019008-REL Decision – 757626.pdf

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Case Analysis: Nickell v. Holiday Harbour Property Owners Association (No. 20F-H2019008-REL)

Executive Summary

This briefing document analyzes the administrative law decision and subsequent amended decision regarding a dispute between Robert S. Nickell (Petitioner) and the Holiday Harbour Property Owners Association (Respondent). The conflict centered on the Association’s denial of Mr. Nickell's request to construct a residence and attached RV garage with a height of 17 feet, which exceeded the 15-foot limit stipulated in the community's Covenants, Conditions, and Restrictions (CC&Rs).

The Petitioner argued that the Association's denial was unreasonable and sought a variance based on claims of selective enforcement and potential drainage issues. However, the Administrative Law Judge (ALJ) determined that the Petitioner failed to meet the burden of proof required to show that the Association acted unreasonably or that the height restriction caused an "extreme or material hardship." Consequently, the petition was dismissed, upholding the Association's right to enforce its established architectural standards.

Case Overview
Category Details
Case Number 20F-H2019008-REL
Petitioner Robert S. Nickell
Respondent Holiday Harbour Property Owners Association
Administrative Law Judge Thomas Shedden
Hearing Date November 19, 2019
Core Dispute Denial of a 17-foot structure in a 15-foot limit zone
Legal Basis A.R.S. § 33-1817(B)(3); CC&Rs Sections 6 and 11
Final Decision Petition Dismissed

Detailed Analysis of Key Themes

1. Architectural Standards and "Lot Grade" Interpretation

The primary technical dispute involved the definition of "lot grade" as the starting point for measuring the 15-foot height restriction mandated by Section 6 of the CC&Rs.

  • Association's Position: The Association interprets "lot grade" as the "highest buildable point," specifically the elevation where the original house on the lot was located. They define the highest buildable point as an area within required setbacks capable of accommodating a structure with 800 square feet of livable space.
  • Petitioner’s Argument: Mr. Nickell contended that the Association had previously used different definitions of lot grade and argued that since his lot had been excavated down by 3.4 feet, he should be permitted a total height of 18.4 feet.
  • Adjudication: The ALJ found the Association’s interpretation reasonable. Testimony from Board member Douglas Clark clarified that the "highest buildable point" identified by the Petitioner was actually outside the required setbacks, undermining the Petitioner's measurement claims.
2. Reasonableness of Architectural Control (A.R.S. § 33-1817(B))

Under Arizona law, an Association cannot unreasonably withhold approval of architectural designs. The Petitioner alleged the Association violated this statute.

  • Proposed Mitigation: The Association demonstrated reasonableness by offering an alternative: they informed Mr. Nickell he could build his 17-foot-2-inch structure if he excavated down from the established lot grade. This would allow him the desired building height while maintaining the community's elevation profile.
  • Fairness vs. Aesthetics: The Association testified that the height restriction is enforced as a "matter of fairness" rather than strictly to preserve specific views. The ALJ concluded that because the Association provided a path to compliance via excavation, their denial of the original non-compliant plan was not unreasonable.
3. Hardship and the Variance Standard

Section 11 of the CC&Rs allows the Association to grant a variance at its discretion if the height restriction causes "extreme or material hardship."

  • Hardship Claims: Mr. Nickell argued that excavation was unfeasible due to drainage concerns. He also rejected the Association’s suggestion to reverse the house footprint, citing impacts on his personal views and the utility of an existing garage bathroom.
  • Legal Conclusion: The ALJ ruled that these inconveniences did not rise to the level of "extreme or material hardship." The Petitioner failed to provide sufficient evidence that the lot could not be drained properly if excavated.
4. Consistency in Enforcement

The Petitioner attempted to argue selective enforcement by providing photographs of other homes with RV garages exceeding 15 feet.

  • Association Rebuttal: The Association successfully argued that the homes identified by the Petitioner were compliant because those owners had excavated down from the lot grade to accommodate the taller structures.
  • Exceptions: While the Association admitted to granting one 17-foot waiver previously, it was for a specific waterfront lot on the west side of Highway 95, which did not establish a precedent for the Petitioner's inland lot.

Important Quotes with Context

On the Burden of Proof

"Mr. Nickell bears the burden of proof, and the standard of proof on all issues in this matter is that of a preponderance of the evidence." (Conclusion of Law No. 2)

Context: This establishes that the Petitioner was legally required to prove that it was more likely than not that the Association acted improperly.

Legal Definition of Preponderance of Evidence

"The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force…" (Conclusion of Law No. 3, quoting Black’s Law Dictionary)

Context: The ALJ used this to evaluate the conflicting testimonies regarding the "highest buildable point" and the feasibility of excavation.

On Contractual Compliance

"The CC&Rs are a contract between the parties and the parties are required to comply with its terms." (Conclusion of Law No. 5)

Context: This reinforces that the 15-foot height limit is a binding contractual obligation that the Association has a right and duty to enforce.

Regarding the Reasonableness of the Association

"The Association allows members to excavate down from the highest buildable point to accommodate structures that are taller than fifteen feet… This was not unreasonable, and Mr. Nickell has not proven that the Association violated ARIZ. REV. STAT. section 33-1817(B)(3)." (Conclusion of Law No. 7)

Context: This quote is the crux of the decision, highlighting that providing an alternative path to compliance (excavation) satisfies the legal requirement for an Association to act reasonably.

Actionable Insights

  • Establishing "Lot Grade" Protocols: Associations should clearly define "lot grade" and "highest buildable point" within their architectural guidelines—ideally referencing areas within setbacks—to avoid disputes during new construction or major renovations.
  • The Power of Compromise: The Association’s willingness to suggest excavation and footprint reversals served as strong evidence of "reasonableness" in the eyes of the court. Proposing alternative solutions to non-compliant homeowners can protect an Association from claims of being "unreasonable."
  • Hardship is a High Bar: For homeowners seeking variances, "hardship" must be more than a preference for a specific view or the convenience of an existing bathroom. "Extreme or material hardship" typically requires proof of physical or structural impossibility.
  • Documentation of Compliance: The Association was able to successfully defend against claims of selective enforcement because they had records showing that other "tall" buildings in the neighborhood had followed the excavation rules. Maintaining a clear paper trail of how previous exceptions or compliant tall structures were handled is vital for legal defense.
  • Correction of Errors: The issuance of the Amended Decision on December 9, 2019, to correct a typographical error in Conclusion of Law No. 9 demonstrates the necessity for parties to review final orders immediately for technical accuracy to ensure the legal record is clear.

Study Guide: Robert S. Nickell v. Holiday Harbour Property Owners Association

This study guide provides a comprehensive overview of the administrative hearing between Robert S. Nickell and the Holiday Harbour Property Owners Association (Case No. 20F-H2019008-REL). It covers the core legal issues regarding height restrictions in planned communities, the application of Arizona Revised Statutes (A.R.S.), and the standards for architectural approval.

I. Overview of the Dispute

The case centers on a petition filed by Robert S. Nickell (Petitioner) against the Holiday Harbour Property Owners Association (Respondent). The Petitioner sought to build a home with a height of seventeen feet on his lot at 4835 Marina View. The Association denied the request based on its Covenants, Conditions, and Restrictions (CC&Rs).

Central Legal Questions
  • Architectural Approval: Did the Association unreasonably withhold approval of the Petitioner’s construction plans in violation of A.R.S. § 33-1817(B)(3)?
  • Variances and Hardships: Did the Petitioner qualify for a height variance under Section 11 of the CC&Rs based on "extreme or material hardship"?
  • Definition of Lot Grade: How is "lot grade" determined for the purposes of enforcing height restrictions?

II. Key Concepts and Findings

1. The Height Restriction (CC&R Section 6)

The Association’s CC&Rs explicitly state that structures may not exceed fifteen (15) feet in height above lot grade. The Association interprets "lot grade" as the "highest buildable point," which in this specific case was the elevation where the original house on the lot was located.

2. Methods of Compliance

The Association allows homeowners to build structures taller than fifteen feet provided they excavate down from the lot grade. This ensures the total height above the original grade does not exceed the 15-foot limit. The Association informed the Petitioner he could build his requested 17-foot, 2-inch structure if he excavated accordingly.

3. The "Highest Buildable Point" Dispute

The Petitioner argued that his lot had already been excavated by 3.4 feet and that the "highest buildable point" should allow for an 18.4-foot structure. However, the Association provided testimony that the point identified by the Petitioner was located outside the required setbacks, and therefore did not qualify as the highest buildable point.

4. Variance Criteria (CC&R Section 11)

A variance or waiver of the height restriction can be granted at the Association's discretion if the restriction causes extreme or material hardship. The Petitioner cited drainage issues and the potential loss of his own views as hardships, but these were not found to meet the legal standard of extreme or material hardship.

5. Legal Standards for Administrative Hearings
  • Authority: The Arizona Department of Real Estate has authority over these matters under A.R.S. Title 32, Ch. 20, Art. 11.
  • Burden of Proof: The Petitioner carries the burden of proof.
  • Standard of Proof: The case is decided based on a preponderance of the evidence, meaning the evidence has the most convincing force and is sufficient to incline an impartial mind to one side.

III. Short-Answer Practice Questions

Q1: What is the maximum height permitted for structures under Section 6 of the Holiday Harbour CC&Rs?

  • Answer: Fifteen (15) feet above lot grade.

Q2: How does the Association define the "highest buildable point" for a lot?

  • Answer: It is an area inside the required setbacks that can accommodate a structure with 800 square feet of livable space.

Q3: Under A.R.S. § 33-1817(B)(3), what is the limitation placed on an Association regarding architectural designs?

  • Answer: Approval of a construction project's architectural designs, plans, and amendments shall not be unreasonably withheld.

Q4: Why did the Petitioner reject the Association's suggestion to reverse the footprint of his proposed house?

  • Answer: He claimed it would affect his own views and his ability to use a bathroom located in the existing garage.

Q5: What was the Petitioner's argument regarding his neighbor's home?

  • Answer: He argued that because the neighboring home was at a higher elevation, his proposed 17-foot home would still be six to eight feet lower than the neighbor’s and would not affect their views.

Q6: What specific reason did the Association give for enforcing height restrictions if not to preserve views?

  • Answer: The Association enforces height restrictions as a matter of fairness.

IV. Essay Prompts for Deeper Exploration

1. The Intersection of Contract Law and HOA Governance

The decision references Johnson v. The Pointe Community Association, noting that CC&Rs are a contract between parties. Discuss the implications of viewing CC&Rs as a contract. How does this contractual nature limit or empower an Association’s Board when enforcing restrictions like height limits?

2. Evaluating "Reasonableness" in Architectural Denials

Under A.R.S. § 33-1817(B)(3) and Tierra Ranchos Homeowners Ass'n v. Kitchukov, an Association must act reasonably. Analyze the Association's actions in this case. Was the offer to allow the Petitioner to build a 17-foot home—contingent on excavation—a "reasonable" compromise? Why did the Administrative Law Judge conclude that the Petitioner failed to prove the Association acted unreasonably?

3. The Challenge of Proving "Extreme or Material Hardship"

The Petitioner argued that excavation was impossible due to drainage issues and that changing his house footprint would negatively impact his personal views and garage access. Compare these claims against the standard of "extreme or material hardship." Why might a court or ALJ find these personal preferences insufficient to warrant a variance?

V. Glossary of Important Terms

Term Definition
A.R.S. § 33-1817(B)(3) An Arizona statute stating that HOAs cannot unreasonably withhold approval of construction architectural designs or plans.
CC&Rs Covenants, Conditions, and Restrictions; a contract between the Association and property owners governing the use of land.
Highest Buildable Point The elevation used to determine lot grade; specifically, an area within setbacks that can hold 800 sq. ft. of livable space.
Lot Grade The reference point for measuring structure height; in this case, the elevation at which the original house was located.
Preponderance of the Evidence The legal standard of proof where the evidence presented is more convincing than the evidence opposed to it.
Setbacks Required distances between a structure and the property lines or other features where building is prohibited.
Variance An exception to the established rules (CC&Rs) granted by the Association, typically in cases of extreme hardship.
Waiver The voluntary relinquishment of a known right or the decision not to enforce a specific restriction in the CC&Rs.

Heights and Hardships: Navigating HOA Construction Disputes

1. Introduction: The Battle for the Extra Two Feet

Homeowners, take note: spending thousands of dollars on architectural designs before clearing the legal hurdles of your CC&Rs is a recipe for a very expensive heartbreak. The case of Robert S. Nickell vs. Holiday Harbour Property Owners Association serves as a textbook example of what happens when a homeowner’s dream of a custom RV garage collides with a Board’s duty to enforce community standards. What began as a request for an extra two feet of height evolved into a legal battle that reaffirmed a fundamental truth in property law: your "vision" for your property does not override the binding contract you signed when you bought into an HOA.

2. The Rulebook: Understanding CC&Rs Section 6 and 11

The dispute hinged on the interpretation of two critical sections of the Holiday Harbour governing documents. As a consultant, I always tell my clients that these are not mere suggestions; they are the boundaries of your property rights.

  • The Height Limit: Section 6 explicitly prohibits any structure from exceeding 15 feet in height when measured above the "lot grade."
  • The Variance Clause: Section 11 provides the Board with the discretion to waive this restriction, but only in instances where the petitioner can demonstrate an "extreme or material hardship."
3. The Homeowner’s Argument: Why 17 Feet?

Petitioner Robert S. Nickell approached the Arizona Department of Real Estate seeking to overturn the Association’s denial of his 17-foot design. His strategy relied on an escalating set of interpretations and grievances:

  • The "Precedent" Claim: Nickell argued the Association was being arbitrary, presenting photos of other homes with RV garages that appeared to exceed the 15-foot limit.
  • A Moving Target: While the initial dispute was over a 17-foot home, Nickell’s demands escalated during the process. He eventually argued for a height of 18.4 feet, based on his own calculations of excavation and "highest buildable point."
  • Subjective Interpretation of Grade: He contended that "lot grade" should be defined as the "highest buildable point" on the property—a definition that favored his desired elevation.
  • The Subjective View Argument: Nickell claimed that because a neighboring home was at a higher elevation, his 17-foot home would not obstruct any neighbor's view. Conversely, he rejected the Association's suggestion to reverse his house footprint because it would negatively impact his own view from a garage bathroom.
  • Practical Hardship: He claimed excavation was impossible due to drainage concerns, asserting that the height limit effectively barred him from his desired build.
4. The Association’s Defense: Fairness Over Views

The Association, supported by testimony from Board members Douglas Clark and Michael Frue, maintained a defense rooted in consistency and mathematical precision. Their rebuttal offered a masterclass in how Boards should handle challenges:

  • Defining "Lot Grade": The Association successfully argued that "lot grade" refers to the historical elevation of the original home on the site.
  • The Setback Criticality: In a move that highlights the importance of surveyed boundaries, the Board proved that the "highest buildable point" Nickell used for his 18.4-foot claim was actually located outside the required property setbacks, rendering it legally irrelevant for height calculations.
  • The Compromise Offer: To prove they were not being "unreasonable," the Association informed Nickell he could build a structure up to 17 feet, 2 inches in total height, provided he excavated down from the lot grade—a standard they had applied to every other "tall" home in the community.
  • The Waterfront Exception: While Nickell pointed to a 17-foot home that had received a waiver, the Association clarified this was one of only six waterfront lots west of Highway 95. This specific class of lot did not set a precedent for Nickell’s inland property.
  • The Fairness Doctrine: The Board testified that height restrictions are enforced to ensure community-wide fairness, not to manage the subjective "views" of individual owners.
5. The Legal Verdict: Defining "Unreasonable"

The Administrative Law Judge (ALJ) reviewed the case under A.R.S. § 33-1817(B), which states that architectural approval shall not be "unreasonably withheld." The court reaffirmed the principle that the petitioner bears the burden of proof under a specific legal standard:

Preponderance of the Evidence: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. BLACK’S LAW DICTIONARY 1373 (10th ed. 2014).

The ALJ determined the Association acted reasonably. By offering a compromise (the 17' 2" excavation option) that was consistent with past enforcement, the Board met its legal obligations.

6. Key Takeaways for Homeowners and HOAs

The lesson for Boards and owners alike is clear. The ruling provides three actionable insights:

  1. Definitions are Legal, Not Subjective: "Lot grade" is typically tied to historical or surveyed points (like the original house footprint), not the most convenient mound of dirt on the property. Nickell’s attempt to use a point outside the setbacks was a fatal flaw in his argument.
  2. The Hardship Bar is Immense: To secure a variance, you must show more than a "preference." The court found that wanting an RV garage or refusing to move a footprint to protect a "garage bathroom view" does not constitute an "extreme or material hardship." Personal amenities are not legal rights.
  3. Case Law Protects the Contract: The court cited Johnson v. The Pointe Community Association and Tierra Ranchos v. Kitchukov to emphasize that CC&Rs are binding contracts. If an Association enforces its rules consistently—even if it offers a path to compromise like excavation—the courts will generally stay out of their hair.
7. Conclusion: The Final Order

The Administrative Law Judge ordered that Robert S. Nickell’s petition be dismissed in its entirety. This case serves as a stark warning: the "highest buildable point" on your lot isn't just where the ground is highest; it's where the law and your contract say it is. Before you break ground, ensure your architect is designing to the CC&Rs, not just your wishlist. In the world of HOAs, the rulebook always stands taller than your extra two feet.

Case Participants

Petitioner Side

  • Robert S. Nickell (Petitioner)
    Appeared on his own behalf

Respondent Side

  • Larry Boquette (HOA President)
    Holiday Harbour Property Owners Association
    Also listed as Lawrence E Boquette; appeared for Respondent
  • Douglas Clark (Board member)
    Holiday Harbour Property Owners Association
    Provided testimony
  • Michael Frue (Board member)
    Holiday Harbour Property Owners Association
    Provided testimony

Neutral Parties

  • Thomas Shedden (ALJ)
    Office of Administrative Hearings
    Administrative Law Judge
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of order

Michael D. Pursley vs. Sycamore Vista No. 7 Homeowners Association,

Posted on by

Case Summary

Case ID 20F-H2019004-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-12-04
Administrative Law Judge Tammy L. Eigenheer
Outcome The ALJ ruled in favor of the Petitioner on both counts. It was found that the HOA violated statutes by failing to hold annual meetings in 2017 and 2018 and failing to timely respond to records requests. The HOA was ordered to refund the Petitioner's $1,000.00 filing fee.
Filing Fees Refunded $1,000.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Michael D. Pursley Counsel —
Respondent Sycamore Vista No. 7 Homeowners Association, Inc. Counsel Maxwell T. Riddiough

Alleged Violations

A.R.S. § 33-1804(B)
A.R.S. § 33-1805

Outcome Summary

The ALJ ruled in favor of the Petitioner on both counts. It was found that the HOA violated statutes by failing to hold annual meetings in 2017 and 2018 and failing to timely respond to records requests. The HOA was ordered to refund the Petitioner's $1,000.00 filing fee.

Key Issues & Findings

Failure to hold annual meetings

Petitioner alleged Respondent failed to hold annual meetings. Respondent admitted to not holding meetings in 2017 and 2018 due to a belief that a quorum could not be established.

Orders: Violation found. Respondent ordered to comply (implied via prevailing party status).

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

Failure to timely provide records

Petitioner alleged Respondent repeatedly failed to provide requested community documents within the statutory timeframe. Respondent eventually provided documents but not within the required time.

Orders: Violation found.

Filing fee: $500.00, Fee refunded: Yes

Disposition: petitioner_win

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Video Overview

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Decision Documents

20F-H2019004-REL Decision – 757066.pdf

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20F-H2019004-REL Decision – 757066.pdf

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Briefing Document: Pursley v. Sycamore Vista No. 7 Homeowners Association, Inc.

Executive Summary

This briefing document details the administrative law proceedings and subsequent decision in the case of Michael D. Pursley v. Sycamore Vista No. 7 Homeowners Association, Inc. (Case No. 20F-H2019004-REL). The matter, heard on October 18, 2019, centered on allegations that the Respondent, Sycamore Vista No. 7 Homeowners Association, Inc. (the HOA), violated Arizona Revised Statutes regarding the conduct of annual meetings and the timely provision of community records to its members.

The Administrative Law Judge (ALJ) concluded that the Respondent failed to comply with its statutory obligations under A.R.S. § 33-1804(B) and A.R.S. § 33-1805(A). Consequently, the Petitioner was deemed the prevailing party and the HOA was ordered to reimburse the Petitioner’s filing fee of $1,000.00.

Detailed Analysis of Key Themes

1. Mandatory Annual Meeting Requirements

The primary legal dispute involved the HOA's failure to hold annual member meetings in 2017 and 2018. Under A.R.S. § 33-1804(B), an association is strictly required to hold a meeting of the members at least once each year.

The Respondent acknowledged the failure but offered a defense based on practical constraints: because the subdivision's lots were largely undeveloped and uninhabited, the HOA believed it could not achieve a quorum. However, the ALJ found this defense insufficient to waive the statutory requirement. Compliance was eventually achieved in 2019 only after a corporate entity purchased enough lots to satisfy quorum requirements.

2. Timeliness of Records Production

The second core issue was the Respondent’s failure to provide governing documents and financial statements within the legally mandated timeframe. A.R.S. § 33-1805(A) grants associations a maximum of ten business days to fulfill requests for the examination or copying of records.

The evidence demonstrated a significant delay in the HOA's response to the Petitioner:

Date of Request Method Content Requested
January 20, 2019 Letter CC&Rs
April 6, 2019 Certified Letter CC&Rs
June 21, 2019 Certified Letter CC&Rs, Rules and Regulations, Bylaws, Financial Statement

The HOA did not provide the documents via email until June 27, 2019—five months after the initial request and significantly beyond the ten-day limit following the final certified letter.

3. Burden of Proof and Legal Standards

In this administrative proceeding, the Petitioner bore the burden of proving the allegations by a "preponderance of the evidence." The court applied the standard definition: evidence that shows the fact sought to be proved is "more probable than not." Given the Respondent's admissions regarding the lack of meetings and the documented timeline of the records requests, the ALJ determined the Petitioner successfully met this burden.

Important Quotes with Context

Statutory Mandates

"A meeting of the members' association shall be held at least once each year." — A.R.S. § 33-1804(B)

  • Context: This quote establishes the non-discretionary nature of annual meetings, which the Respondent failed to adhere to for two consecutive years.

"The association shall have ten business days to fulfill a request for examination. On request for purchase of copies of records… the association shall have ten business days to provide copies of the requested records." — A.R.S. § 33-1805(A)

  • Context: This excerpt outlines the strict window of time an HOA has to respond to a member's request for information, a timeline the Respondent exceeded in this case.
Defense and Findings

"Respondent’s witness indicated that because the lots were undeveloped and no one was living in the association, Respondent believed it would be unable to have the number of owners present to make a quorum necessary to hold the annual meeting." — Findings of Fact, Paragraph 11

  • Context: This explains the Respondent’s rationale for skipping meetings, which the court ultimately found did not excuse the statutory violation.

"Petitioner initially denied having received the June 27, 2019 email that included the requested documents, but acknowledged that Respondent did email the documents to him even if he did not see them when they were sent to him." — Findings of Fact, Paragraph 10

  • Context: This clarifies that while documents were eventually provided, the provision occurred only after multiple requests and the initiation of the dispute process.

Actionable Insights

Based on the findings and the final order in this matter, the following insights are relevant for the management of homeowners associations:

  • Quorum Challenges Do Not Excuse Non-Compliance: HOAs must attempt to hold annual meetings regardless of development status or anticipated quorum issues to remain in compliance with A.R.S. § 33-1804(B).
  • Strict Adherence to the 10-Day Records Rule: Once a member submits a written request for records, the association has a maximum of ten business days to provide the materials. Failure to do so, even if the records are eventually provided, constitutes a statutory violation.
  • Certified Mail as a Trigger: The use of certified mail by a member provides a clear, evidentiary timeline for records requests. Management companies should treat these as high-priority to avoid administrative litigation.
  • Financial Risk of Litigation: While the ALJ did not find a civil penalty appropriate in this specific case, the Respondent was still ordered to pay the Petitioner's $1,000 filing fee. This demonstrates the direct financial cost of failing to address member requests and statutory requirements in a timely manner.
  • Permissible Copying Fees: Per A.R.S. § 33-1805(A), while an association cannot charge for making materials available for review, they are entitled to charge a fee of no more than fifteen cents ($0.15) per page for physical copies.

Study Guide: Michael D. Pursley v. Sycamore Vista No. 7 Homeowners Association, Inc.

This study guide provides a comprehensive overview of the administrative law case Michael D. Pursley v. Sycamore Vista No. 7 Homeowners Association, Inc. (No. 20F-H2019004-REL). It covers key legal concepts regarding Arizona Homeowners Association (HOA) regulations, the findings of the Administrative Law Judge (ALJ), and the statutory requirements for association transparency and governance.

Key Legal Concepts and Statutes

The case centers on the interpretation and application of Arizona Revised Statutes (A.R.S.) regarding the conduct of homeowners associations and the rights of their members.

1. Mandatory Annual Meetings (A.R.S. § 33-1804)

Under Arizona law, specifically A.R.S. § 33-1804(B), a homeowners association is mandated to hold a meeting of the members at least once every year. The failure to hold such a meeting constitutes a violation of the statute, regardless of internal logistical challenges such as a lack of quorum.

2. Member Access to Records (A.R.S. § 33-1805)

Members of an association have a statutory right to examine and copy association records. Key provisions of A.R.S. § 33-1805(A) include:

  • Reasonable Availability: All financial and other records must be made available for examination by a member or their designated representative.
  • Response Timeframe: The association has exactly ten business days to fulfill a request for examination or to provide copies of requested records.
  • Cost Limitations: Associations are prohibited from charging for the review of materials. If a member requests copies, the association may charge a fee of no more than fifteen cents per page.
3. Burden of Proof and Legal Standards
  • Jurisdiction: The Arizona Department of Real Estate (ADRE) has the authority to hear disputes between property owners and associations under A.R.S. § 32-2199 et seq.
  • Preponderance of the Evidence: In these administrative proceedings, the Petitioner (the homeowner) bears the burden of proof. They must prove their case by a "preponderance of the evidence," meaning the evidence shows the facts sought to be proved are "more probable than not."

Case Summary: Findings and Conclusions

The Dispute

Petitioner Michael D. Pursley, a member of the Sycamore Vista No. 7 HOA, filed a petition with the Department of Real Estate alleging two primary violations:

  1. The Respondent failed to hold annual meetings in 2017 and 2018.
  2. The Respondent failed to timely provide requested community documents (CC&Rs, Rules and Regulations, Bylaws, and Financial Statements) after multiple requests made in early 2019.
The Respondent’s Defense

The HOA acknowledged it did not hold the 2017 and 2018 meetings. Their defense was based on the fact that the lots were undeveloped and no residents were living in the association, leading them to believe they could not achieve a quorum (the minimum number of members required to conduct business). By 2019, a corporate entity had purchased enough lots to meet quorum requirements.

The Tribunal’s Decision

The ALJ ruled in favor of the Petitioner on both counts:

  • Meeting Violation: The HOA violated A.R.S. § 33-1804(B) by failing to hold meetings for two consecutive years.
  • Records Violation: The HOA violated A.R.S. § 33-1805(A) by failing to provide the requested records within the required ten-business-day window. While the records were eventually sent via email on June 27, 2019, this occurred months after the initial January and April requests.

Final Order:

  • Petitioner was deemed the prevailing party.
  • The Respondent was ordered to pay the Petitioner’s $1,000.00 filing fee.
  • No additional civil penalty was assessed.

Short-Answer Practice Questions

Q1: According to A.R.S. § 33-1804(B), how frequently must an HOA hold a members' meeting?

  • A: At least once each year.

Q2: What is the maximum per-page fee an HOA can charge for copies of records?

  • A: Fifteen cents ($0.15) per page.

Q3: How many business days does an association have to fulfill a request for records examination or copies?

  • A: Ten business days.

Q4: What reason did Sycamore Vista No. 7 HOA provide for not holding meetings in 2017 and 2018?

  • A: The lots were undeveloped and no one was living there, so the HOA believed it could not reach a quorum.

Q5: Who bears the burden of proof in an HOA dispute hearing, and what is the required standard of evidence?

  • A: The Petitioner bears the burden of proof by a "preponderance of the evidence."

Q6: What was the specific financial penalty/reimbursement ordered by the ALJ in this case?

  • A: The Respondent was ordered to pay the Petitioner his $1,000.00 filing fee.

Essay Prompts for Deeper Exploration

  1. Statutory Compliance vs. Practical Constraints: Analyze the HOA’s defense regarding the lack of quorum due to undeveloped lots. Why did the ALJ find this defense insufficient to excuse the violation of A.R.S. § 33-1804(B)? Discuss the importance of maintaining statutory governance even in the early stages of a development.
  1. The Significance of Timely Disclosure: In this case, the Petitioner eventually received the requested documents. Explore why the law mandates a strict ten-business-day response time under A.R.S. § 33-1805(A) and the potential impact on homeowners when associations fail to meet this timeline.
  1. The Role of the Administrative Law Judge (ALJ): Based on the document, describe the process of an administrative hearing for HOA disputes. Evaluate how the ALJ weighs evidence (such as the "preponderance of the evidence" standard) to reach a conclusion when facts—such as the receipt of an email—are initially contested.

Glossary of Important Terms

Term Definition
A.R.S. Arizona Revised Statutes; the codified laws of the state of Arizona.
CC&Rs Covenants, Conditions, and Restrictions; the governing documents that dictate the rules for a planned community.
Petitioner The party who initiates a lawsuit or petition (in this case, Michael D. Pursley).
Respondent The party against whom a petition is filed (in this case, Sycamore Vista No. 7 HOA).
Quorum The minimum number of members of an assembly or society that must be present at any of its meetings to make the proceedings of that meeting valid.
Preponderance of the Evidence A legal standard of proof meaning that the evidence as a whole shows the fact sought to be proved is more probable than not.
Administrative Law Judge (ALJ) An official who presides over an administrative hearing and makes findings of fact and conclusions of law.
Business Days For the purposes of records requests, these are the days during which the association must fulfill requests, excluding weekends and holidays (implied by the ten-day limit).
Governing Documents The collective set of rules for the association, including CC&Rs, Bylaws, and Rules and Regulations.

Understanding Your Rights: A Lesson in HOA Accountability from Pursley v. Sycamore Vista No. 7

1. Introduction: When Homeowners Take a Stand

As an expert in HOA compliance and an advocate for homeowner rights, I frequently see Boards of Directors acting as if state statutes are merely "suggestions." For many homeowners, dealing with an unresponsive association feels like shouting into a void. You pay your assessments and follow the CC&Rs, but when you ask for basic transparency, you’re met with silence or excuses.

The case of Michael D. Pursley vs. Sycamore Vista No. 7 Homeowners Association, Inc. is a landmark reminder that you do not have to accept Board negligence. This case demonstrates how a single, persistent homeowner held his association accountable through the Arizona Department of Real Estate (ADRE) dispute process. If your Board is skipping annual meetings or gatekeeping records, this ruling provides the roadmap for asserting your rights.

2. The Core Obligations: What the Law Requires

In Arizona, the operations of a Planned Community are governed by strict statutory mandates. Boards often plead ignorance, but as a homeowner, you must know that these requirements are non-negotiable legal duties.

Statute Number Mandatory Association Action
A.R.S. § 33-1804(B) A meeting of the members' association shall be held at least once each year.
A.R.S. § 33-1805(A) Fulfill requests to examine or provide copies of association records within ten business days.

Note for Homeowners: These statutes are part of the Arizona Planned Communities Act. They do not say a Board "should" hold a meeting; they say a meeting shall be held.

3. The Case Study: A Timeline of Non-Compliance

The dispute in Pursley v. Sycamore Vista No. 7 provides a textbook example of how "administrative friction" is used to discourage homeowners. Mr. Pursley’s journey to obtain basic governing documents spanned nearly half a year:

  • January 20, 2019: Initial request for CC&Rs sent to the management company.
  • April 6, 2019: After receiving no response, Pursley sent a certified letter repeating the request.
  • June 21, 2019: A second certified letter was sent, expanding the request to include Rules and Regulations, Bylaws, and Financial Statements.
  • June 27, 2019: The Association finally emailed the documents—five months after the initial request.

The "Expert" Insight on Deadlines: Interestingly, during the hearing, Mr. Pursley argued that the Association failed to provide documents within 20 business days. In a win for homeowners, the Administrative Law Judge (ALJ) corrected this: under A.R.S. § 33-1805(A), the Association actually only has 10 business days to comply. The law is even stricter than the Petitioner realized.

4. The Judge’s Ruling: Transparency Prevails

Administrative Law Judge Tammy L. Eigenheer found that the Association’s excuses did not hold up under legal scrutiny. The Petitioner successfully proved his case by a "preponderance of the evidence," meaning he showed it was more probable than not that the violations occurred.

Proven Violations:

  • Failure to Hold Meetings: The Association admitted it held no annual meetings in 2017 or 2018, a direct violation of A.R.S. § 33-1804(B).
  • Failure to Provide Timely Records: The Association failed the 10-business-day statutory deadline for record production.

The Financial Outcome: The Judge designated Mr. Pursley as the prevailing party and ordered the Association to pay his $1,000.00 filing fee within 30 days. However, as an expert consultant, I must set a realistic expectation: the ALJ noted that "No Civil Penalty is found to be appropriate." This process is designed for compliance and cost recovery, not for homeowners to collect "damages" or punitive fines.

5. Why "Quorum" and "Development" Aren't Excuses

The Association attempted to justify its failure to hold meetings by claiming that because the lots were undeveloped and no one was living there, they believed they couldn't achieve a quorum. They only held a meeting in 2019 after a corporate entity purchased enough lots to guarantee a quorum.

The ALJ rejected this logic entirely. A Board cannot wait for a "friendly" corporate developer to arrive before fulfilling its duty to the individual homeowners already in the association. The statutory requirement to hold a meeting "at least once each year" is absolute. If you are the only resident in a sea of empty lots, you still have the right to an annual meeting.

6. Conclusion: Key Takeaways for Every Homeowner

The Pursley case is a victory for the "little guy," but it also highlights the necessity of a professional approach to disputes.

Expert Actionable Takeaways:

  1. Certified Mail is Your Best Friend: Mr. Pursley’s use of certified mail created an indisputable paper trail. Never rely on phone calls or unconfirmed emails.
  2. Maintain a Detailed Interaction Log: Beyond mail, keep a log of every date, time, and person you speak with regarding records. This is your "evidence" if you end up before a judge.
  3. The 10-Day Rule is Powerful: Do not let management companies tell you they need "a few weeks." The clock starts when they receive the request, and they have 10 business days. Period.
  4. Use the OAH Process: Traditional litigation is expensive and slow. The Office of Administrative Hearings (OAH) provides access to specialized judges who understand HOA law, making it a more cost-effective and viable path for members.

Transparency is not a courtesy—it is a right. When Boards fail to follow state statutes, they undermine the community's trust. By knowing the law and documenting every step, you can ensure your association remains accountable to the people it serves.

Case Participants

Petitioner Side

  • Michael D. Pursley (petitioner)
    Appeared on his own behalf

Respondent Side

  • Maxwell T. Riddiough (respondent representative)
    Sycamore Vista No. 7 Homeowners Association, Inc.
    Represented the Respondent
  • Bradley P. Miller (Statutory Agent)
    Sycamore Vista No 7 HOA, Inc.
    Listed on transmission list

Neutral Parties

  • Tammy L. Eigenheer (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Listed on transmission list
  • Felicia Del Sol (clerk)
    Office of Administrative Hearings
    Transmitted the decision

Mangus (AKA Gary) L.D. MacLeod Grantor and Trustee v. Mogollon

Posted on by

Case Summary

Case ID 19F-H1919070-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-12-02
Administrative Law Judge Thomas Shedden
Outcome The ALJ dismissed the petition, finding that the Respondent provided all responsive records in its possession. The tribunal held that A.R.S. § 33-1805(A) does not require an association to obtain and produce records it does not have.
Filing Fees Refunded $500.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Mangus (AKA Gary) L.D. MacLeod Grantor and Trustee Counsel —
Respondent Mogollon Airpark, Inc. Counsel Gregory Stein

Alleged Violations

A.R.S. § 33-1805

Outcome Summary

The ALJ dismissed the petition, finding that the Respondent provided all responsive records in its possession. The tribunal held that A.R.S. § 33-1805(A) does not require an association to obtain and produce records it does not have.

Why this result: Petitioner failed to meet the burden of proof; the ALJ ruled that the statutory requirement to make records available does not extend to records not in the association's possession.

Key Issues & Findings

Failure to provide records (CD history trail)

Petitioner requested specific historical records regarding four CDs. Respondent provided records in its possession and some obtained from banks, but Petitioner argued Respondent was required to obtain further 'history trails' it did not possess.

Orders: Petition dismissed.

Filing fee: $500.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1805(A)

Video Overview

Audio Overview

Decision Documents

19F-H1919070-REL Decision – 756469.pdf

Uploaded 2026-04-24T11:21:44 (91.2 KB)

19F-H1919070-REL Decision – 756469.pdf

Uploaded 2026-01-27T21:17:12 (91.2 KB)

Administrative Law Judge Decision: MacLeod v. Mogollon Airpark, Inc.

Executive Summary

On December 2, 2019, Administrative Law Judge Thomas Shedden issued a decision in the matter of Mangus L.D. MacLeod v. Mogollon Airpark, Inc. (Case No. 19F-H1919070-REL). The dispute centered on whether the Respondent, Mogollon Airpark, Inc., violated Arizona Revised Statutes (A.R.S.) § 33-1805 by failing to provide certain financial records requested by the Petitioner, Mangus MacLeod.

The Petitioner contended that the Association was legally obligated to obtain and produce bank records related to four Certificates of Deposit (CDs) from 2017, even if those records were not currently in the Association's possession. The Respondent maintained that it had provided all responsive records it possessed and had even assisted the Petitioner in obtaining additional records directly from financial institutions.

The Administrative Law Judge (ALJ) ruled in favor of the Respondent, concluding that A.R.S. § 33-1805(A) does not require an association to procure records it does not have. Consequently, the petition was dismissed.

Detailed Analysis of Key Themes

1. Statutory Interpretation of A.R.S. § 33-1805(A)

The central legal question was the scope of an association's duty to make "financial and other records" available. The Petitioner argued that because certain records (like bank history trails) are mentioned in an association’s records retention policy, they must be produced upon request regardless of whether the association actually possesses them.

The ALJ rejected this interpretation, noting that:

  • Statutes must be interpreted to provide "fair and sensible" results.
  • The tribunal cannot expand a statute to include requirements not explicitly stated in its provisions.
  • Requiring an association to obtain records it does not possess would constitute an "absurd and unreasonable construction" of the law.
2. Possession vs. Acquisition

The case distinguished between records held by the Association and records held by third-party entities (banks).

  • Respondent's Position: On April 22, 2019, the Association provided all records it currently had, including some newly acquired from banks via the Board president's proactive efforts.
  • Petitioner's Position: The Association was responsible for obtaining the full "history trail" of the CDs from the banks to facilitate a proper audit.

The ALJ found that once the Association provided all records in its possession, it had fulfilled its statutory duty.

3. Evidentiary Standards and Burden of Proof

The Petitioner bore the burden of proof by a preponderance of the evidence. The ALJ determined that the Petitioner failed to:

  • Identify any responsive records that were actually in the Respondent’s possession at the time of the request.
  • Provide substantial evidence that the Respondent failed to comply with a second records request.
4. Good Faith Cooperation

The findings of fact highlight that the Respondent, specifically Board president Craig Albright and the management company (HOAMCO), acted cooperatively. This included:

  • Contacting three banks to solicit records.
  • Directly accompanying the Petitioner to banks in June 2019 to help produce records.
  • Maintaining communication regarding the lack of hardcopy or electronic formats for older 2017 records.

Key Quotes and Contextual Analysis

Quote Source Context Significance
"The 'core' issue in this matter is whether 'other records' as used in ARIZ. REV. STAT. section 33-1805(A) includes all records listed in that retention policy regardless of whether Respondent actually has those records." Finding of Fact #18 Defines the Petitioner's legal theory: that a retention policy creates an absolute mandate to produce, even if the records must be sought from third parties.
"Courts will not place an absurd and unreasonable construction on statutes." Conclusion of Law #4 (Citing State v. McFall) Establishes the judicial boundary for interpreting HOA records laws; the ALJ used this to dismiss the idea that HOAs must "hunt" for missing records.
"Mr. MacLeod acknowledged that he could not identify any records that were responsive to his requests that were in the possession of Respondent when he made those requests." Finding of Fact #20 This admission was fatal to the Petitioner's case, as the statute governs existing records of the association.
"The preponderance of the evidence shows that Respondent provided Mr. MacLeod with copies of all records it had that were responsive to his first request." Conclusion of Law #8 The ultimate factual finding that cleared the Respondent of the alleged violation.

Actionable Insights

For Homeowners' Associations (HOAs)
  • Possession is the Metric: Compliance with A.R.S. § 33-1805(A) is generally measured by the production of records currently in the association's possession (either physical or electronic).
  • Documentation of Effort: The Respondent’s success was bolstered by the ability to show they contacted banks and worked with the management company (HOAMCO) to find responsive documents. Associations should document all efforts to fulfill record requests.
  • Third-Party Suggestion: When records are held by third parties (like banks), suggesting that the requester contact those entities directly is a valid and helpful response, though not strictly required by the statute to obtain those records for them.
For Petitioners/Members
  • Identifying Possession: Before filing a petition, a member should be able to provide evidence that the association actually holds the records being withheld.
  • Retention Policy vs. Statute: A retention policy dictates what an association should keep, but the statutory penalty for non-production under § 33-1805 applies to what the association has available for examination.
  • Meeting the Standard of Proof: Petitioners must provide "substantial evidence" (evidence that would permit a reasonable person to conclude the finding is substantiated) to prevail in administrative hearings.
Procedural Takeaway
  • Cooperation as Defense: While the hearing involved "hours of testimony" and "a thousand pages of proposed exhibits," the ALJ focused on the Respondent’s cooperative behavior and the credible testimony of the Board president regarding the April 22nd production of documents. This suggests that demonstrating "good faith" can be a powerful defense in administrative disputes.

MacLeod v. Mogollon Airpark, Inc.: A Study Guide on Association Records and Statutory Requirements

This study guide provides a comprehensive overview of the administrative law case Mangus L.D. MacLeod v. Mogollon Airpark, Inc. (No. 19F-H1919070-REL). The case centers on the interpretation of Arizona Revised Statutes (A.R.S.) § 33-1805 regarding the duty of a homeowners' association to provide records to its members.

Key Concepts and Case Overview

Core Dispute

The primary issue in this matter is whether an association is legally required to obtain and produce records that are not currently in its possession to satisfy a member’s request under A.R.S. § 33-1805. The Petitioner, Mangus MacLeod, sought the "history trail" for four Certificates of Deposit (CDs) held by Mogollon Airpark, Inc. dating back to 2017.

Legal Venue and Parties
  • Tribunal: Arizona Office of Administrative Hearings.
  • Petitioner: Mangus (AKA Gary) L.D. MacLeod, Grantor and Trustee.
  • Respondent: Mogollon Airpark, Inc. (managed by HOAMCO).
  • Administrative Law Judge: Thomas Shedden.
Statutory Framework: A.R.S. § 33-1805(A)

This statute governs the availability of association records:

  • Availability: All financial and other records of the association must be made reasonably available for examination.
  • Timeline for Examination: The association has ten business days to fulfill a request for examination.
  • Timeline for Copies: The association has ten business days to provide copies of requested records upon a request for purchase.

Summary of Findings and Legal Conclusions

Factual Timeline
Date Event
April 13 & May 3, 2019 Mr. MacLeod makes formal requests for CD records from 2017.
April 22, 2019 HOAMCO (Respondent's management) provides all records currently in possession.
June 12, 2019 Mr. MacLeod files a petition alleging non-compliance.
June 2019 Board president Craig Albright assists MacLeod by visiting banks to produce further records.
Oct & Nov 2019 Administrative hearings are conducted.
December 2, 2019 Administrative Law Judge issues a decision dismissing the petition.
Judicial Reasoning
  1. Possession of Records: The court found that the Respondent provided all records it had in its possession at the time of the request. The Respondent even went beyond its legal duty by soliciting new records from banks to assist the Petitioner.
  2. Statutory Interpretation: The judge ruled that A.R.S. § 33-1805(A) does not require an association to obtain records it does not have. Expanding the statute to include such a requirement would be "absurd and unreasonable."
  3. Burden of Proof: The Petitioner failed to provide "substantial evidence" that the Respondent withheld any records that were actually in its possession.

Short-Answer Practice Questions

1. Who bears the burden of proof in this administrative hearing? Answer: The Petitioner (Mangus MacLeod).

2. What is the standard of proof required for this case? Answer: Preponderance of the evidence.

3. According to A.R.S. § 33-1805(A), how many business days does an association have to provide copies of requested records? Answer: Ten business days.

4. Why did the Administrative Law Judge dismiss Mr. MacLeod’s petition? Answer: Because the Respondent provided all records it possessed that were responsive to the request, and the law does not require associations to obtain records from third parties (like banks) that they do not currently hold.

5. How did the Board president, Craig Albright, demonstrate cooperation after the petition was filed? Answer: He accompanied Mr. MacLeod to several banks in June 2019 to help have records produced directly for him.

Essay Questions for Deeper Exploration

1. Statutory Construction and Judicial Restraint

The decision references State ex rel. Morrison v. Anway, stating that a tribunal "may not expand or extend a statute to include that which is not within its provisions." Discuss how this principle applied to the Judge’s interpretation of "other records" in A.R.S. § 33-1805(A). Why would requiring an association to retrieve third-party records be considered an "absurd and unreasonable" construction of the law?

2. The Definition of "Reasonably Available"

Under A.R.S. § 33-1805(A), records must be made "reasonably available." Based on the findings of fact in this case, evaluate whether Mogollon Airpark, Inc. and its management company, HOAMCO, met this standard. Consider the actions taken by the Board president to contact banks and the information sent via email on April 22, 2019.

3. Evidentiary Weight and Witness Credibility

On the first day of the hearing, witness Craig Albright was described as "confused" regarding when certain bank records were obtained. On the second day, however, the Judge found his testimony "credible." Analyze the importance of witness credibility in administrative hearings and how the final determination of facts (Findings of Fact #15 and #16) influenced the legal outcome.

Glossary of Important Terms

  • A.R.S. § 33-1805: The specific Arizona statute governing the inspection and copying of association records by members.
  • Administrative Law Judge (ALJ): A judge who moves over trials and adjudicates disputes involving administrative agencies.
  • HOAMCO: The management company for Mogollon Airpark, Inc.
  • Petitioner: The party who initiates a lawsuit or petition (in this case, Mangus MacLeod).
  • Preponderance of the Evidence: The standard of proof where the evidence has the "most convincing force" and shows that a fact is more likely true than not.
  • Respondent: The party against whom a petition is filed (in this case, Mogollon Airpark, Inc.).
  • Substantial Evidence: Evidence that would permit a reasonable person to conclude that a proposed finding should be substantiated.
  • Tribunal: A court or forum of justice; in this context, the Office of Administrative Hearings.

The Limits of Transparency: Lessons from MacLeod v. Mogollon Airpark, Inc.

1. Introduction: The Tension Between Transparency and Practicality

In the world of community association governance, transparency is a statutory mandate, yet it is frequently tested by the practical realities of record-keeping. A recurring flashpoint for litigation involves a fundamental question: does an association’s duty to provide records extend to documents it does not actually possess?

This tension reached a definitive conclusion in a dispute between homeowner Mangus MacLeod and Mogollon Airpark, Inc. The matter, litigated before the Arizona Department of Real Estate (Case No. 19F-H1919070-REL) and heard by the Office of Administrative Hearings, serves as a critical boundary-marker for the rights of members and the administrative obligations of boards. The ruling clarifies that while transparency is essential, the law does not require an association to perform the impossible or the extra-statutory.

2. The Request: A Search for the "History Trail"

The conflict began in the spring of 2019. On April 13 and May 3, Petitioner Mangus MacLeod submitted formal requests to Mogollon Airpark, Inc. to examine and copy records dating back to 2017 concerning four Certificates of Deposit (CDs) held by the association. Mr. MacLeod's stated motive was to establish a "history trail" for these assets, which he argued was necessary for a "proper audit" of the association’s financial standing.

In response, Board President Craig Albright took proactive steps to satisfy the request. He coordinated with the association’s treasurer and contacted three separate financial institutions to retrieve the records. While two banks cooperated electronically, a third refused. The gathered documents, combined with records already in the association’s possession, were delivered to MacLeod via the management company, HOAMCO, on April 22, 2019.

Despite these efforts, MacLeod remained dissatisfied. He contended that the association was legally required to obtain the missing 2017 bank records, asserting that the association’s responsibility was not limited by what was currently in its filing cabinets but extended to any records it should have according to its internal policies.

3. Arguments from Both Sides
Petitioner (MacLeod) Respondent (Mogollon Airpark, Inc.)
Statutory Expansion: Argued that the term "other records" in A.R.S. § 33-1805(A) should be interpreted to include all documents listed in the HOA’s records retention policy, regardless of whether the HOA actually possesses them. Possession-Based Compliance: Asserted that the association satisfied its legal duty by providing all responsive records currently in its possession or control.
Mandatory Procurement: Claimed the HOA has an affirmative legal obligation to retrieve records from third parties (banks) if a member requests them for an audit. Reasonable Effort: Argued that there is no statutory mandate to "create" a record or "procure" third-party documents that the association does not hold.
The "Audit" Motive: Asserted that the "history trail" was essential for financial oversight and that the HOA’s failure to produce it hindered member transparency. Good Faith Action: Highlighted Board President Albright’s extensive efforts to assist, including personally accompanying the Petitioner to banks to attempt to retrieve the data.
4. The Legal Verdict: Interpreting A.R.S. § 33-1805(A)

Administrative Law Judge (ALJ) Thomas Shedden focused the ruling on the strict construction of A.R.S. § 33-1805(A), which requires that association records be made "reasonably available for examination."

In his analysis, the ALJ firmly constrained the scope of the statute, refusing to "legislate from the bench" by expanding the law’s requirements. The court relied on three core legal principles to reach its decision:

  1. Avoidance of Absurdity: Citing Gutierrez v. Industrial Commission of Arizona and State v. McFall, the ALJ noted that statutes must be interpreted to provide a "fair and sensible result" and that courts must reject "absurd and unreasonable construction."
  2. Statutory Limits: Referencing State ex rel. Morrison v. Anway, the ALJ emphasized that a tribunal may not expand or extend a statute to include requirements not expressly written in its provisions.
  3. Defining "Reasonably Available": The ALJ clarified that "reasonably available" pertains to the manner and timing of access to records the association actually has—it does not create a mandate for the association to hunt down, procure, or produce records held by third parties.

The ALJ concluded that equating a "retention policy" list with a "mandatory production" list was an unreasonable construction of the law.

5. Critical Takeaways for Homeowners and Boards

The MacLeod decision provides a roadmap for handling records disputes with precision and professional distance:

  • Possession vs. Obligation: A board’s duty is to produce what it has. The law does not require an association to "go hunting" for third-party records. If a record is not in the association's possession or control, the association has no statutory obligation to go out and get it.
  • The Credibility of Good Faith: During the hearing, Board President Albright was initially "confused" about the exact dates some records were obtained. However, because his underlying documentation (Exhibit 11) was solid and his actions—such as accompanying the petitioner to the bank—showed a clear intent to cooperate, the ALJ found his testimony credible.
  • The Burden of Proof is Substantial: Under Arizona Administrative Code § R2-19-119, the Petitioner bears the burden of proof by a "preponderance of the evidence." The "smoking gun" in this case was MacLeod’s own admission: he could not identify a single record that the HOA actually possessed that was being withheld.
  • Internal Policies are Not Statutes: While a "records retention policy" is a best-practice internal document, it does not expand the association’s legal liability under A.R.S. § 33-1805. A homeowner cannot use an internal policy to force a board to perform duties that the state legislature did not expressly authorize.
6. Conclusion: A Fair and Sensible Result

The ruling in MacLeod v. Mogollon Airpark, Inc. reinforces a standard of reasonableness. While transparency is the law, it is not an unlimited license for members to demand administrative labor from their boards. By adhering to the "fair and sensible" standard, the ALJ protected community associations from being forced to act as private investigators for individual members. For boards, the takeaway is clear: document your records, cooperate in good faith, and rest assured that your legal obligations end where your actual possession of records begins.

Case Participants

Petitioner Side

  • Mangus (AKA Gary) L.D. MacLeod (Petitioner)
    Appeared and testified

Respondent Side

  • Gregory Stein (Attorney for Respondent)
    Carpenter, Hazlewood, Delgado & Bolen LLP
  • Craig Albright (Board President)
    Mogollon Airpark, Inc.
    Witness; testified
  • Brian Dye (Community Manager)
    HOAMCO

Neutral Parties

  • Thomas Shedden (Administrative Law Judge)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate
    Recipient of the order
  • Felicia Del Sol (Administrative Staff)
    Office of Administrative Hearings
    Transmitted the order

Joyce H Monsanto vs. Four Seasons at the Manor Homeowners Association

Posted on by
Note: A Rehearing was requested for this case. The dashboard statistics reflect the final outcome of the rehearing process.

Case Summary

Case ID 19F-H1919053-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2019-11-18
Administrative Law Judge Diane Mihalsky
Outcome The ALJ denied the petition, concluding that the HOA's architectural guideline limiting homeowners to one flagpole per lot, while permitting the display of both the U.S. flag and a military flag (Marine Corps flag) on that single pole, constitutes a reasonable rule under A.R.S. § 33-1808(B). The ALJ also found the Board complied with the 45-day requirement for a written appeal decision under CC&R § 7.9 by memorializing the denial in the draft meeting minutes posted by December 4, 2018,,.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Joyce H Monsanto Counsel —
Respondent Four Seasons at the Manor Homeowners Association Counsel Mark K. Sahl, Esq.

Alleged Violations

A.R.S. § 33-1808; CC&R § 7.9

Outcome Summary

The ALJ denied the petition, concluding that the HOA's architectural guideline limiting homeowners to one flagpole per lot, while permitting the display of both the U.S. flag and a military flag (Marine Corps flag) on that single pole, constitutes a reasonable rule under A.R.S. § 33-1808(B). The ALJ also found the Board complied with the 45-day requirement for a written appeal decision under CC&R § 7.9 by memorializing the denial in the draft meeting minutes posted by December 4, 2018,,.

Why this result: The Petitioner failed to meet her burden of proof on both statutory and CC&R violations,.

Key Issues & Findings

HOA's denial of application to install two flagpoles for US and military flags, and alleged failure to follow CC&R appeal process.

Petitioner challenged the HOA's denial of her request to install two flagpoles, arguing the restriction violated A.R.S. § 33-1808 (flag statute) and that the Board failed to provide a written decision on her appeal within 45 days as required by CC&R § 7.9, which she argued meant the request was deemed approved. The ALJ found the single flagpole restriction reasonable under A.R.S. § 33-1808(B) since both flags could be flown from one pole, and determined the Board satisfied the CC&R § 7.9 requirement by posting the decision in the meeting minutes within 45 days,.

Orders: Petitioner's petition is denied, as she failed to establish that the Respondent's Board should not have denied her application under A.R.S. § 33-1808 or CC&R § 7. The Board can properly find Petitioner in violation of Architectural Guidelines and order her to remove one of her two flagpoles.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1808
  • CC&R § 7.9
  • A.R.S. § 33-1803
  • A.R.S. § 32-2199(B)

Analytics Highlights

Topics: Flag display, Architectural Guidelines, CC&Rs, Statutory compliance, Planned Communities Act, Rehearing
Additional Citations:

  • A.R.S. § 33-1808
  • CC&R § 7.9
  • A.R.S. § 33-1803
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)
  • CC&R § 7

Video Overview

Audio Overview

Decision Documents

19F-H1919053-REL-RHG Decision – 749213.pdf

Uploaded 2026-01-23T17:29:16 (163.6 KB)

19F-H1919053-REL-RHG Decision – 753595.pdf

Uploaded 2026-01-23T17:29:19 (163.3 KB)

Briefing Document: Monsanto v. Four Seasons at the Manor HOA

Executive Summary

This document synthesizes the findings and legal reasoning from the Amended Administrative Law Judge Decision in the case of Joyce H. Monsanto versus the Four Seasons at the Manor Homeowners Association (HOA). The central conflict revolves around the HOA’s denial of Ms. Monsanto’s request to install two separate flagpoles on her home to display the United States flag and the United States Marine Corps flag. The petitioner alleged this denial violated Arizona state law and the HOA’s own governing documents.

The Administrative Law Judge (ALJ) ultimately denied the petitioner’s claim, ruling in favor of the HOA. The decision established two critical points: first, that the HOA’s rule limiting homeowners to a single flagpole is a “reasonable” regulation on the “placement and manner of display” explicitly permitted under Arizona statute A.R.S. § 33-1808(B), and does not constitute a prohibition of flag display. Second, the HOA was found to have complied with its own appeal process as outlined in its Covenants, Conditions, and Restrictions (CC&Rs). The ALJ concluded that an oral denial at a board meeting, later documented in publicly posted meeting minutes, satisfied the CC&R’s requirement to “render its written decision” within a 45-day timeframe. The ruling affirms an HOA’s authority to enforce uniform aesthetic standards, provided they are reasonable and applied according to the association’s governing documents.

Case Background and Procedural History

The case was brought before the Arizona Office of Administrative Hearings (OAH) following a petition filed by homeowner Joyce H. Monsanto (“Petitioner”) against her HOA, Four Seasons at the Manor Homeowners Association (“Respondent”).

• Initial Petition: On March 6, 2019, the Petitioner filed a petition with the Arizona Department of Real Estate, alleging the HOA violated state law (A.R.S. § 33-1803) and its CC&Rs (§ 7.9) by refusing to approve her request for two flagpoles.

• First Hearing: An evidentiary hearing was held on May 30, 2019, after which the ALJ found that the Petitioner had not proven any violation by the HOA.

• Rehearing: The Commissioner of the Department of Real Estate granted the Petitioner’s request for a rehearing on August 22, 2019. This rehearing took place on October 21, 2019.

• Amended Decision: On November 18, 2019, ALJ Diane Mihalsky issued an Amended Administrative Law Judge Decision, again denying the Petitioner’s petition and affirming the previous findings. The amendment was issued to correct a typographical error and clarify the parties’ appeal rights.

The Core Dispute: A Request for Two Flagpoles

The petitioner, whose husband and two sons have long careers in the U.S. Marines and Coast Guard, sought to display both the U.S. flag and the U.S. Marine Corps flag on her home.

• The Application: On August 31, 2018, she submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house, flanking her front door.

• The Rationale: The Petitioner stated her desire for two separate poles was for aesthetic reasons, believing the display would look better. She also expressed concern that a single, larger flagpole installed in her front yard would obstruct the view from her front window.

• The Denial: On September 22, 2018, the HOA’s Architectural Committee issued a written Notice of Disapproval, citing the Architectural Guidelines which permit only one flagpole per lot.

• The Appeal: On October 1, 2018, the Petitioner submitted a written appeal to the HOA Board, arguing the denial was unreasonable, that the guidelines were not uniformly enforced, and that the board could grant a waiver under CC&R § 7.6.

Governing Rules and Statutes

The case decision rested on the interpretation of Arizona state law and the HOA’s specific governing documents.

Arizona Revised Statute § 33-1808

This statute governs the right of homeowners to display certain flags.

• Protection of Display: Subsection A states that an association “shall not prohibit the outdoor… display” of the American flag or a military flag, among others.

• Right to Regulate: Subsection B grants associations the authority to “adopt reasonable rules and regulations regarding the placement and manner of display.” It explicitly allows rules that “regulate the location and size of flagpoles,” “limit the member to displaying no more than two flags at once,” and limit flagpole height, while not prohibiting their installation.

HOA Architectural Guidelines

The community’s rules regarding flagpoles evolved but consistently maintained a key restriction.

• Original Guideline (May 24, 2016): “Poles must not exceed 12’ in height, and only one flagpole is permitted per Lot.”

• Amended Guideline (November 8, 2018): The board increased the maximum pole height to 20′ and added rules for nighttime illumination and inclement weather, but explicitly “did not change the limit of one flagpole per lot.”

HOA CC&Rs (Covenants, Conditions, and Restrictions)

The procedural requirements for architectural review and appeals were central to the Petitioner’s claim.

• Section 7.8 (Board Approval): Pertaining to initial applications, this section requires the Board to provide the owner with a “written response within sixty (60) days,” otherwise the request is deemed approved.

• Section 7.9 (Appeal): Pertaining to appeals, this section requires the Board to consult with the Architectural Committee and “render its written decision” within 45 days. A failure by the Board to render a decision in this period “shall be deemed approval.” This section does not contain the same explicit language as § 7.8 requiring the response be provided to the owner.

Analysis of the Appeal Process and Conflicting Testimonies

A significant portion of the dispute centered on the events of the November 8, 2018, HOA Board meeting, where the Petitioner’s appeal was to be considered. The accounts of what transpired at this meeting were contradictory.

Petitioner’s Testimony (Joyce H. Monsanto)

Respondent’s Testimony (Anthony Nunziato, Board President)

Consultation

The board did not consult the Architectural Committee.

The board consulted with the Architectural Committee before the meeting.

Decision

The board did not consider or make any decision on her appeal.

The board considered the appeal and made a decision.

Notification

She was never told her appeal was denied at the meeting.

He was certain the board verbally informed the Petitioner that her appeal was denied at the meeting.

On December 4, 2018, draft minutes from the November 8 meeting were posted on the HOA’s website. The Petitioner acknowledged seeing them. These minutes included the following entry:

“[Petitioner’s] last request was for a waiver that would allow her to have two flagpoles on her property (one to fly the American flag and the other to fly the Marine flag). The Board rejected this request since our CC&Rs allow for the flying of both flags on a single flagpole.”

The Petitioner argued that these publicly posted draft minutes, which were not sent directly to her, did not constitute a valid written denial of her appeal under the CC&Rs.

Administrative Law Judge’s Decision and Rationale

The ALJ’s decision methodically rejected each of the Petitioner’s claims, relying on witness credibility, statutory interpretation, and contract construction principles.

Credibility Assessment

The ALJ made a clear determination on the conflicting testimonies regarding the November 8 meeting.

• Mr. Nunziato’s testimony that the board made a decision and informed the Petitioner was found to be “credible and supported by the minutes of the meeting.”

• The Petitioner’s testimony that the board made no decision on her appeal was deemed “incredible.”

Ruling on A.R.S. § 33-1808 (State Flag Law)

The ALJ concluded that the HOA’s one-flagpole rule did not violate state law.

• The rule was found to be a “reasonable rule or regulation under A.R.S. § 33-1808(B).”

• Because the Architectural Guidelines allow for flying two flags from a single flagpole up to 20′ long, the HOA was not prohibiting the display of flags, merely regulating the manner.

• The ALJ characterized the core issue as the “Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.”

Ruling on CC&R § 7.9 (Appeal Process)

The ALJ found that the HOA had followed the procedure required by its own CC&Rs.

• Consultation: Based on Mr. Nunziato’s credible testimony, the board fulfilled its duty to consult with the Architectural Committee.

• “Render a Decision”: The board “rendered a decision on her appeal at the November 8, 2018 board meeting” when it orally reached a decision.

• “Written Decision”: The board created a “writing memorializing its decision” by documenting it in the meeting minutes. Because the Petitioner saw these minutes on December 4, 2018, this action occurred within the 45-day window following her October 1, 2018 appeal.

• No Delivery Requirement: The ALJ applied the “negative implication cannon of contract construction.” By comparing CC&R § 7.9 (appeals) with § 7.8 (initial applications), the judge noted that § 7.9 lacks the explicit requirement to provide the written decision to the owner. Therefore, posting the minutes was sufficient, and the Petitioner’s request was not “deemed approved.”

Final Order

Based on these findings, the ALJ issued a final, binding order.

IT IS ORDERED that the Petitioners’ petition is denied because she has not established that the Respondent’s Board should not have denied her application to install two flagpoles on her property.

The decision concludes with a notice informing the parties that the order is binding and that any appeal must be filed with the superior court within 35 days from the date of service.

Study Guide: Monsanto v. Four Seasons at the Manor HOA

This study guide provides a detailed review of the legal case Joyce H. Monsanto v. Four Seasons at the Manor Homeowners Association, Case No. 19F-H1919053-REL-RHG, as detailed in the Amended Administrative Law Judge Decision dated November 18, 2019. The guide includes a short-answer quiz, a corresponding answer key, suggested essay questions, and a comprehensive glossary of terms to facilitate a thorough understanding of the case’s facts, arguments, and legal conclusions.

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, based entirely on the information provided in the case document.

1. Who are the Petitioner and the Respondent in this case, and what is their relationship?

2. What specific action did the Petitioner request from the Respondent that initiated this dispute?

3. On what grounds did the Respondent’s Architectural Committee initially deny the Petitioner’s request on September 22, 2018?

4. Identify the key Arizona statute cited in the case and explain its two main provisions regarding flag displays.

5. What was the Petitioner’s primary argument regarding the Respondent’s handling of her appeal under CC&R § 7.9?

6. According to the testimony of Board President Tony Nunziato, how did the Board address the Petitioner’s appeal at the November 8, 2018 meeting?

7. What documentary evidence did the Respondent use to support the claim that a decision on the appeal was made and written down within the required timeframe?

8. Why did the Administrative Law Judge (ALJ) find the Respondent’s one-flagpole rule to be legally permissible?

9. What is the legal standard of proof required for the Petitioner in this case, and did she meet it according to the ALJ?

10. What was the final order issued by the Administrative Law Judge in this case and its practical consequence for the Petitioner?

——————————————————————————–

Answer Key

1. The Petitioner is Joyce H. Monsanto, a homeowner. The Respondent is the Four Seasons at the Manor Homeowners Association (HOA). Ms. Monsanto is a member of the Respondent HOA because she owns a house within its development in Sun City, Arizona.

2. The Petitioner submitted a Design Review Application to install two 6-foot-long flagpoles on the exterior wall of her house. She intended to fly the United States flag from one pole and the United States Marine Corps flag from the other.

3. The Architectural Committee denied the request because the community’s Architectural Guidelines only permitted one flagpole per lot. The written Notice of Disapproval explicitly stated this rule as the reason for the denial.

4. The key statute is A.R.S. § 33-1808. Its first provision, § 33-1808(A), prohibits an HOA from banning the display of the American flag and various military flags. The second provision, § 33-1808(B), allows an HOA to adopt reasonable rules regulating the placement, size, and number of flagpoles, explicitly permitting a limit of one flagpole per property.

5. The Petitioner argued that the Board violated CC&R § 7.9 because it failed to provide her with a formal written decision denying her appeal within the 45-day period. She contended that because she never received a dedicated letter, the request should have been “deemed approved” as stipulated in the CC&R for failure to render a timely decision.

6. Tony Nunziato testified that the Board did consult with the Architectural Committee regarding the appeal before the meeting. He stated with certainty that at the November 8, 2018 meeting, the Board considered the appeal and verbally informed Ms. Monsanto that her request for a waiver was denied.

7. The Respondent presented the draft minutes from the November 8, 2018 Board meeting, which were posted on the HOA’s website on December 4, 2018. These minutes explicitly stated that the Board rejected the Petitioner’s request for a waiver to have two flagpoles, fulfilling the requirement to have a written record of the decision within 45 days of her October 1 appeal.

8. The ALJ found the rule permissible because A.R.S. § 33-1808(B) explicitly grants HOAs the authority to “adopt reasonable rules and regulations” which may “regulate the location and size of flagpoles” and “shall not prohibit the installation of a flagpole.” Since the HOA’s guidelines allowed for one flagpole up to 20 feet long, capable of flying two flags, the judge concluded the rule was reasonable under the statute.

9. The required standard of proof was a “preponderance of the evidence,” meaning the Petitioner had to convince the judge that her contention was more probably true than not. The ALJ concluded that the Petitioner did not meet this burden of proof to establish that the Respondent violated any statute or its own CC&Rs.

10. The final order denied the Petitioner’s petition. The practical consequence is that the HOA’s denial of her application for two flagpoles was upheld, and the Board could therefore properly find her in violation of the Architectural Guidelines and order her to remove one of her two flagpoles.

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Suggested Essay Questions

1. Analyze the conflict between A.R.S. § 33-1808(A), which protects a homeowner’s right to display military flags, and § 33-1808(B), which grants HOAs regulatory power. How did the Administrative Law Judge balance these two provisions to reach a conclusion in this case?

2. Discuss the concept of “burden of proof” as it applied to the Petitioner. Detail the specific claims made by Joyce Monsanto and explain why, according to the legal decision, she failed to establish them by a “preponderance of the evidence.”

3. Examine the procedural dispute surrounding CC&R § 7.9. Contrast the Petitioner’s interpretation of a “written decision” with the interpretation ultimately adopted by the Administrative Law Judge, referencing the role of the verbal notification and the meeting minutes.

4. Evaluate the role of testimony and credibility in this administrative hearing. Compare and contrast the testimony provided by Petitioner Joyce Monsanto and Respondent’s Board President Tony Nunziato regarding the events of the November 8, 2018 board meeting, and explain why the judge found Mr. Nunziato’s account more credible.

5. Based on the facts presented, construct an argument that the HOA’s actions, while legally permissible according to the judge, were inconsistent with the patriotic values of its community, which includes many retired military members. Conversely, construct an argument defending the Board’s decision as a necessary and fair application of rules essential for maintaining community standards.

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Glossary of Key Terms

Definition in Context

Administrative Law Judge (ALJ)

An independent judge who presides over administrative hearings, makes findings of fact, and issues legal decisions. In this case, Diane Mihalsky served as the ALJ for the Office of Administrative Hearings.

A.R.S. § 33-1808

An Arizona Revised Statute that governs the display of flags in planned communities. It forbids HOAs from prohibiting certain flags (like the U.S. and military flags) but permits them to establish reasonable rules regarding the number, size, and location of flagpoles.

Architectural Committee

A committee established by the HOA’s CC&Rs responsible for reviewing and approving or disapproving homeowners’ applications for external modifications to their property, such as installing flagpoles.

Architectural Guidelines

The specific rules adopted by the HOA that set forth requirements for property modifications. In this case, the guidelines limited each lot to one flagpole, with a maximum height of 20 feet.

Burden of Proof

The legal obligation of a party in a dispute to provide sufficient evidence to prove their claim. The Petitioner, Joyce Monsanto, bore the burden of proof to show the HOA had violated the law or its own rules.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing legal documents that create the rules for a planned community. The Petitioner alleged the Respondent violated CC&R § 7.9, which outlines the appeal process for disapproved architectural applications.

Declarant

The original developer of a planned community who establishes the initial CC&Rs. In this case, K. Hovnanian was the Declarant for Four Seasons at the Manor.

Homeowners’ Association (HOA)

The governing organization in a planned community responsible for enforcing the CC&Rs and managing common areas. The Respondent, Four Seasons at the Manor Homeowners Association, is an HOA.

Negative Implication

A principle of legal interpretation which holds that the explicit inclusion of one thing implies the intentional exclusion of another. The ALJ used this to argue that because CC&R § 7.9 (appeals) does not specify that a written decision must be sent to the owner, unlike CC&R § 7.8 (initial applications), that requirement should not be read into the appeal rule.

Office of Administrative Hearings (OAH)

An independent Arizona state agency that conducts evidentiary hearings for other state agencies, providing an impartial forum to resolve disputes.

Petitioner

The party who initiates a legal action by filing a petition. In this case, Joyce H. Monsanto is the Petitioner.

Preponderance of the Evidence

The evidentiary standard required in this civil case. It is defined as proof that convinces the trier of fact (the judge) that a contention is “more probably true than not.”

Respondent

The party against whom a petition is filed. In this case, the Four Seasons at the Manor Homeowners Association is the Respondent.

Restrictive Covenant

A legally enforceable rule within the CC&Rs that limits what a homeowner can do with their property. The rule limiting homes to one flagpole is an example of a restrictive covenant.

Waiver

The act of intentionally relinquishing a known right or claim. The Petitioner argued that the HOA board could, and should, have waived the one-flagpole rule for her under CC&R § 7.6.

HOA vs. Military Family: 4 Lessons from a Legal Battle Over a Flagpole

For Joyce Monsanto, a member of a dedicated military family, displaying her patriotism was a matter of pride. Her husband served 25 years in the Marines, and her two sons have spent decades in the Marines and the Coast Guard. Naturally, she wanted to fly both the flag of the United States and the flag of the U.S. Marine Corps at her Arizona home. But when she submitted her plan to her Homeowners Association (HOA), she was met with a firm “no.”

The conflict wasn’t about the flags themselves. The Four Seasons at the Manor HOA had no issue with her displaying both. The dispute centered on how she wanted to display them. It was a disagreement over her vision for a symmetrical, two-pole display versus the HOA’s “one flagpole per lot” rule. This architectural dispute escalated from a simple request into a formal administrative hearing.

Ms. Monsanto’s fight reveals several surprising truths about the power of HOA rules and the specific language written into state law. Her case ultimately failed on two fronts—a substantive challenge to the rule itself, and a procedural challenge to how the HOA handled her appeal. Here’s what every homeowner can learn from each.

1. Your Right to Fly the Flag Has Limits—And They’re Written into Law.

Many homeowners believe the right to fly the American flag is unconditional. However, the legal reality is more nuanced. While Arizona law (A.R.S. § 33-1808) prevents an HOA from outright prohibiting the display of U.S. or military flags, it explicitly allows the association to create “reasonable rules and regulations” for their placement and manner of display.

The statute is specific about what these rules can cover. An HOA can legally regulate the size and location of flagpoles and can limit a homeowner to displaying no more than two flags at once. In this case, the HOA’s architectural guidelines permitted two flags, but only on a single flagpole. The Administrative Law Judge found this “one flagpole per lot” rule was a “reasonable” regulation and therefore perfectly legal. To underscore that the HOA’s stance was not about a lack of patriotism, the judge noted testimony that the HOA president himself “placed 140 small flags on his property” for Memorial Day. The issue was about the uniform enforcement of an architectural rule, not the patriotic display itself.

2. Your Personal Taste Is No Match for the Community Rulebook.

During the hearing, Ms. Monsanto acknowledged that she could fly both of her flags from a single pole as the HOA rules allowed. Her reason for wanting two poles was a matter of personal preference. She testified that she “wanted to install two flagpoles for aesthetic reasons” and also felt that a single pole placed in the middle of her lot would block the view from her front window.

The judge was unmoved by this line of reasoning. In the final decision, the response was direct and unambiguous:

Petitioner’s petition is about her choice not to install a single flagpole for her own aesthetic reasons, not Respondent’s unreasonableness or lack of patriotism.

This is a foundational principle of community association law: homeowners trade a degree of personal autonomy for the perceived benefits of uniform standards and predictable property values. The judge’s decision simply reaffirms that bargain. In the world of planned communities, the established rulebook will almost always outweigh an individual’s personal taste.

3. In HOA Law, the Appeal Isn’t a Re-do—It’s a Different Process.

One of Ms. Monsanto’s key arguments was procedural. She believed her appeal should have been automatically approved because the HOA failed to provide a written decision within the 45-day deadline stipulated in its own rules (CC&R § 7.9). This is where the judge identified a subtle but crucial legal distinction buried in the HOA’s governing documents.

The HOA’s CC&Rs had two different sections for architectural requests:

• CC&R § 7.8 (Initial Requests): This section explicitly required the Board to “inform the submitting party of the final decision” with a “written response.”

• CC&R § 7.9 (Appeals): This section, however, only required the Board to “render its written decision” within 45 days.

That small difference in wording—”written response” versus “written decision”—was the linchpin of her procedural case. The judge ruled that for an appeal, the HOA was not required to send a personal letter or direct notice to Ms. Monsanto. It only had to create a written record of its decision within the timeframe.

4. A Post on an HOA Website Can Count as an Official “Written Decision.”

The final surprise came down to what constitutes a “written decision” and how the deadline was met. Ms. Monsanto was waiting for a formal letter informing her that her appeal had been denied. She never received one. Her appeal was filed on October 1, 2018, starting a 45-day clock.

The judge found the HOA satisfied its obligation in a two-step process:

1. The Decision: The Board verbally denied her appeal during its public meeting on November 8, 2018. This action, which occurred 38 days after her appeal, fulfilled the requirement to “render its decision” within the 45-day period.

2. The Writing: That decision was then recorded in the draft meeting minutes, which were posted on the Board’s website on December 4, 2018. Ms. Monsanto acknowledged seeing the posted minutes.

The judge ruled that these online minutes satisfied the separate legal requirement for a “writing memorializing its decision.” Even though they weren’t sent directly to her, the publicly posted minutes served as the official record of the timely denial of her appeal, closing the final door on her argument for automatic approval.

Conclusion: Before You Plant Your Flag, Read the Fine Print

Joyce Monsanto’s case is a cautionary tale on two levels. First, it shows that even cherished rights like displaying the flag are subject to reasonable, neutrally-applied community rules. Second, and more critically, it demonstrates that procedural arguments live and die by the most precise definitions in the governing documents. A single word can be the difference between winning an appeal and being ordered to take your flagpole down.

This case came down to the difference between a “written response” and a “written decision”—do you know what the fine print says about your rights in your community?

Case Participants

Petitioner Side

  • Joyce H Monsanto (petitioner)
    Appeared on her own behalf

Respondent Side

  • Mark K. Sahl (HOA attorney)
    Carpenter, Hazlewood, Delgado & Bolen, LLP
  • Anthony Nunziato (board member)
    Four Seasons at the Manor Homeowners Association
    President of the Board of Directors; also referred to as 'Tony'
  • Annette McCraw (property manager)
    Community Manager/Trestle Management (implied)
    Sent Notice of Disapproval on behalf of Respondent
  • Marc Vasquez (HOA representative)
    Addressed Petitioner's claim regarding violation letters at the Board meeting

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (Commissioner)
    Arizona Department of Real Estate

Jason West vs. Desert Sage Two Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1919065-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-10-01
Administrative Law Judge Diane Mihalsky
Outcome The Petitioner's request for a hearing was denied and the petition was dismissed because the Petitioner failed to prove the Homeowners Association violated A.R.S. § 33-1804(B) or its Bylaw 1.5 by refusing to place a proposed bylaw amendment on the meeting agenda or ballot.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Jason West Counsel —
Respondent Desert Sage Two Homeowners Association Counsel Bradley R. Jardine

Alleged Violations

A.R.S. § 33-1804(B) and Bylaw 1.5

Outcome Summary

The Petitioner's request for a hearing was denied and the petition was dismissed because the Petitioner failed to prove the Homeowners Association violated A.R.S. § 33-1804(B) or its Bylaw 1.5 by refusing to place a proposed bylaw amendment on the meeting agenda or ballot.

Why this result: The relevant statute and HOA bylaws do not mandate that the Board add a member-proposed amendment to the agenda; the member has the independent recourse of gathering member support (25% or 1/4 of votes) to call a special meeting, a route the Petitioner was aware of but did not pursue.

Key Issues & Findings

Failure to place a proposed bylaw amendment on the agenda of the annual meeting

Petitioner alleged Respondent HOA violated A.R.S. § 33-1804(B) and Bylaw 1.5 by refusing to place his proposed bylaw amendment (Bylaw 3.13, concerning banning directors whose actions resulted in a paid claim) on the agenda or ballot for the annual meeting.

Orders: Petition denied because Petitioner did not establish that Respondent violated the cited statute or bylaw by declining to add the proposed amendment to the agenda or ballot.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • A.R.S. § 33-1804(B)
  • Bylaw 1.5
  • Bylaw 2.2

Analytics Highlights

Topics: HOA, Bylaw Amendment, Meeting Agenda, Director liability, Statute interpretation
Additional Citations:

  • A.R.S. § 33-1804(B)
  • A.R.S. § 32-2199(B)
  • A.R.S. § 41-1092.07(G)(2)
  • A.R.S. § 41-1092.09
  • Respondent’s Bylaw 1.5
  • Respondent’s Bylaw 2.2

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Video Overview

Audio Overview

Decision Documents

19F-H1919065-REL Decision – 742075.pdf

Uploaded 2026-04-24T11:21:02 (159.4 KB)

19F-H1919065-REL Decision – 742075.pdf

Uploaded 2026-01-23T17:29:36 (159.4 KB)

Briefing Document: West v. Desert Sage Two Homeowners Association (Case No. 19F-H1919065-REL)

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the matter of Jason West (Petitioner) versus the Desert Sage Two Homeowners Association (Respondent), Case No. 19F-H1919065-REL. The petition, filed on May 20, 2019, was ultimately denied in a decision issued on October 1, 2019.

The central issue was the Petitioner’s allegation that the Respondent’s Board of Directors violated Arizona statute A.R.S. § 33-1804(B) and its own Bylaw 1.5 by refusing to add his proposed bylaw amendment to the agenda for the annual members’ meeting. The proposed amendment sought to ban directors from serving for five years if their actions resulted in a paid claim against the Association.

The ALJ’s ruling was decisive: the Petitioner failed to meet the burden of proof. The decision rested on a strict interpretation of the relevant statute and bylaws. The ALJ concluded that neither A.R.S. § 33-1804(B) nor the Association’s bylaws compel the Board to place a member-initiated proposal on the agenda of a Board-scheduled meeting. Critically, the bylaws provide a distinct and available remedy for members: Bylaw 2.2 allows members to force a special meeting for any purpose, including bylaw amendments, by gathering the support of 25% of the voting membership. The record showed the Petitioner was aware of this option but did not attempt to use it. Consequently, the petition was dismissed. The Respondent’s request for attorney’s fees was also denied, as the presiding body (the Office of Administrative Hearings) lacks the statutory authority to award them in such proceedings.

1. Case Overview

Case Name

Jason West v. Desert Sage Two Homeowners Association

Case Number

19F-H1919065-REL

Jurisdiction

Office of Administrative Hearings (OAH), Arizona

Presiding Judge

Administrative Law Judge Diane Mihalsky

Hearing Date

September 26, 2019

Decision Date

October 1, 2019

Petitioner

Jason West, appearing on his own behalf

Respondent

Desert Sage Two Homeowners Association, represented by Bradley R. Jardine, Esq.

Core Allegation: The Petitioner alleged that the Respondent’s Board violated state law and its governing documents by refusing to include his proposed bylaw amendment on the agenda and ballot for the annual meeting held in June 2019.

2. The Proposed Bylaw Amendment (Bylaw 3.13)

The Petitioner submitted a proposal to add a new Bylaw 3.13 to the Association’s governing documents. The full text of the proposed amendment is as follows:

Directors whose actions result in a paid claim

In an effort to reduce liability to the Association, any current or former director whose actions have resulted in a paid claim by the Association or its insurance carrier, is banned from serving as a director for a period of five years from the date of the final payment. This five year directorship ban also applies to any other individual co-owning an Association lot with the director. This Amendment is retroactive.

The stated purpose of the amendment was to reduce the Association’s liability. The decision notes that some of the current Board members may have been serving when the Association’s insurance carrier paid legal fees and other costs associated with a previous petition filed by the Petitioner.

3. Chronology of the Dispute

• December 23, 2018: The Petitioner first sent his proposed Bylaw 3.13 amendment to Joanelize Morales, the Association’s property manager.

• January 3 & 4, 2019: The Petitioner emailed Mickey Latz, owner of the management company, demanding the proposal be added to the next meeting’s agenda and ballot. In this correspondence, the Petitioner explicitly stated his awareness of the alternative process, writing, “I can also force the Board to call a Special Meeting of the Members at any time with 10 signatures from members of our Association. This is Article 2.2 of our Bylaws.”

• January – June 2019: Mr. Latz repeatedly informed the Petitioner that the Board, based on legal advice, had decided not to add the proposal to the agenda of a Board-scheduled meeting.

• April 17, 2019: Notice was sent to members for the annual meeting scheduled for June 4, 2019. The agenda was limited to (1) Election of Directors and (2) Approval of 2018 Annual Meeting Minutes. On the same day, the Petitioner re-sent his proposed amendment.

• May 14, 2019: The Petitioner attended a Board meeting and threatened to file a petition with the Department of Real Estate if his amendment was not placed on the agenda.

• May 20, 2019: The Petitioner filed the formal petition that led to this hearing.

• June 3, 2019: A notice was sent rescheduling the meeting to June 20, 2019, with the agenda unchanged.

• June 20, 2019: At the annual meeting, the Petitioner, whose name was on the ballot, was not elected to the Board of Directors.

4. Governing Authorities and Bylaws

The ALJ’s decision centered on the interpretation of one state statute and two specific Association bylaws.

• A.R.S. § 33-1804(B): This Arizona statute governs homeowners’ association meetings. It requires annual meetings and specifies notice requirements. It explicitly provides a mechanism for members to call special meetings: “Special meetings of the members’ association may be called by the president, by a majority of the board of directors or by members having at least twenty-five percent, or any lower percentage specified in the bylaws, of the votes in the association.”

• Bylaw 1.5 (Amendment Process): This bylaw states that amendments can be made “at a regular or special meeting of the Members, by a vote of the Members having a majority (more than 50%) of the votes.” The ALJ found that this bylaw is permissive, allowing for votes on amendments, but does not obligate the Board to place any specific proposal on an agenda.

• Bylaw 2.2 (Special Meetings): This bylaw mirrors the state statute, allowing members to compel a meeting. It states: “Special meetings of the Members may be called at any time … upon written request signed by Members having at least one-fourth (1/4) of the authorized votes… which request shall be delivered to the President or Secretary.”

5. Summary of Key Testimony

The hearing included testimony from the Petitioner and six witnesses he subpoenaed, including property managers and the three current Board members.

• Board Members (Bryan Selna, David Epstein, Linda Seidler): All testified that they consulted with the Association’s attorneys and property management company. Based on the advice received, they collectively decided not to add the Petitioner’s proposal to the agenda.

• Mickey Latz (Property Management Co. Owner): Testified that the Board as a whole, not the secretary, determines the meeting agenda. He affirmed that counsel had advised the Board it was not obligated to add member-requested items. Mr. Latz testified that he explicitly pointed the Petitioner to the process outlined in Bylaw 2.2, which allows members to call their own meetings directly.

• Joanelize Morales (Property Manager): Confirmed that she prepares meeting agendas based on the Board’s instructions. She also testified that the Petitioner never attempted to use the Bylaw 2.2 process to gather the support of his neighbors to schedule a meeting to consider his proposed amendment.

6. Historical Context and Prior Litigation

The decision provides context regarding the Petitioner’s previous interactions with the Association.

• Prior Petition (OAH Case No. 17F-H1716031-REL): In April 2017, the Petitioner filed a petition concerning the Board’s failure to fill vacant positions. On June 28, 2017, an ALJ dismissed that petition, concluding that the Board had done all it could and that vacancies were due in part to the Petitioner’s “obstructionist tactics.”

• Successful Amendment (Bylaw 3.12): In April 2017, the Petitioner proposed a different amendment regarding director resignations. The Board at that time agreed to submit it to a vote, and it was passed by the membership in May 2017.

7. Administrative Law Judge’s Decision and Rationale

The ALJ’s conclusions of law methodically dismantled the Petitioner’s claims, leading to the dismissal of the petition.

• Burden of Proof: The decision established that the Petitioner bore the burden of proving, by a preponderance of the evidence, that the Respondent had violated the statute and bylaw.

• Statutory and Bylaw Interpretation: The ALJ applied a plain-language reading to the governing authorities.

◦ The court found that nothing in the language of A.R.S. § 33-1804(B) requires an HOA board to add an item to an agenda at a member’s request. Instead, it provides the remedy for members to call a meeting themselves.

◦ Similarly, the court concluded that Bylaw 1.5 allows for bylaw amendments to be considered at meetings but does not compel the Board to include such proposals on the agenda of a meeting it has noticed.

◦ The ALJ found that Bylaw 2.2 provides the explicit and proper procedure for a member to bring an issue to a vote when the Board declines to do so: gather support from 25% of the members to call a special meeting.

• Final Ruling: Because the Petitioner failed to establish a violation of any cited statute or bylaw, the petition was ordered to be denied.

• Attorney’s Fees: The Respondent’s request for attorney’s fees was denied. The decision cited legal precedent establishing that administrative bodies like the Department of Real Estate and the OAH are not empowered by the legislature to award attorney’s fees in these types of disputes.

Study Guide: West v. Desert Sage Two Homeowners Association

Short-Answer Quiz

Answer the following questions in 2-3 complete sentences, based on the provided administrative law judge decision.

1. Who are the Petitioner and the Respondent in this case, and what is their relationship?

2. What specific action did the Petitioner, Jason West, allege the Respondent took that violated Arizona statute and the association’s bylaws?

3. Describe the substance of the proposed Bylaw 3.13 that the Petitioner wanted to add to the agenda.

4. What was the Respondent’s primary defense for not adding the proposed bylaw amendment to the annual meeting’s agenda or ballot?

5. According to Bylaw 2.2, what procedural option did the Petitioner have to bring his proposed amendment to a vote without the Board’s approval?

6. What was the outcome of the Petitioner’s previous case against the Respondent in 2017 (OAH Case No. 17F-H1716031-REL)?

7. What two specific authorities did the Petitioner claim the Respondent’s Board violated?

8. According to the Administrative Law Judge’s interpretation, does A.R.S. § 33-1804(B) require an HOA board to add an item to an agenda at a single member’s request?

9. What was the final order of the Administrative Law Judge in this case (No. 19F-H1919065-REL)?

10. What was the judge’s ruling regarding the Respondent’s request for attorney’s fees, and what was the reason for this ruling?

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Answer Key

1. The Petitioner is Jason West, who owns a house in the Desert Sage Two development. The Respondent is the Desert Sage Two Homeowners Association, of which the Petitioner is a member.

2. The Petitioner alleged that the Respondent violated A.R.S. § 33-1804(B) and its own Bylaw 1.5. The specific violation was the Board’s failure to place a bylaw amendment proposed by the Petitioner on the agenda of the association’s annual meeting.

3. The proposed Bylaw 3.13 sought to ban any current or former director from serving on the board for five years if their actions resulted in a paid claim by the association or its insurance carrier. This ban would be retroactive and also apply to any individual co-owning a lot with the director.

4. The Respondent’s Board, after consulting with its attorneys and property management company, argued that neither state law nor its bylaws obliged them to add items to an agenda at a single member’s request. They contended that the Petitioner had the option to call a special meeting himself by gathering support from other members.

5. Bylaw 2.2 allows for a special meeting of the members to be called upon a written request signed by members who hold at least one-fourth (25%) of the authorized votes. The Petitioner was aware of this option but had not attempted to use it.

6. In the previous case, the Administrative Law Judge dismissed the Petitioner’s petition. The judge concluded that the Board had done all it could to fill vacant positions and that the Petitioner’s own “obstructionist tactics” were part of the reason no eligible members were willing to serve.

7. The Petitioner claimed the Respondent’s Board violated Arizona Revised Statute § 33-1804(B) and the association’s Bylaw 1.5.

8. No, the judge concluded that nothing in the language of A.R.S. § 33-1804(B) requires a homeowners’ association board to add an item to an agenda or ballot at the request of a single member. The statute only provides that members with at least 25% of the votes can independently call a meeting.

9. The Administrative Law Judge ordered that the Petitioner’s petition be denied. The judge found that the Petitioner had not established that the Respondent’s Board violated either A.R.S. § 33-1804(B) or Bylaw 1.5.

10. The judge ruled that attorney’s fees could not be awarded to the Respondent. The reason given is that the legislature has not empowered the Department of Real Estate or the Office of Administrative Hearings to award attorney’s fees in this type of administrative proceeding.

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Essay Questions

Construct a detailed essay response for each of the following prompts, using only evidence and reasoning found within the case document.

1. Analyze the Administrative Law Judge’s method of statutory construction and interpretation of restrictive covenants. How did the judge apply these principles to A.R.S. § 33-1804(B) and Bylaw 1.5 to reach a conclusion?

2. Discuss the balance of power between an individual HOA member and the Board of Directors as illustrated in this case. What rights and recourses are available to a member who disagrees with a Board decision, according to the Respondent’s Bylaws?

3. Explain the concept of “burden of proof” as it applies to this case. Who held the burden of proof, what was the standard required, and why was the Petitioner unable to meet this standard?

4. Examine the history between the Petitioner and the Respondent as detailed in the “Findings of Fact.” How might this prior history, including the 2017 legal case and a previously successful bylaw amendment, have influenced the actions of both parties in the current dispute?

5. Based on the testimony of Michael David (“Mickey”) Latz and the text of the bylaws, contrast the process for placing an item on the agenda of a Board-scheduled meeting versus the process for calling a member-initiated special meeting. What are the key differences in initiative, requirements, and control?

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Glossary of Key Terms

Definition from Source Context

Administrative Law Judge (ALJ)

An independent official (Diane Mihalsky) from the Office of Administrative Hearings who presides over evidentiary hearings and issues decisions on petitions filed with the Arizona Department of Real Estate.

A.R.S. § 33-1804(B)

An Arizona statute cited by the Petitioner. It stipulates that an HOA members’ meeting must be held at least annually and that special meetings can be called by the president, a board majority, or members with at least 25% of the votes.

Bylaw 1.5

A bylaw of the Desert Sage Two HOA that states the Bylaws may be amended at a regular or special meeting by a majority vote of members present in person or by proxy.

Bylaw 2.2

A bylaw of the Desert Sage Two HOA that allows for special meetings of the members to be called by the president, the Board, or upon written request from members holding at least one-fourth (25%) of the votes.

Department

The Arizona Department of Real Estate, the state body authorized to receive and decide petitions for hearings from members of homeowners’ associations.

Homeowners’ Association

An organization whose members own property and/or residences in a specific development (in this case, Desert Sage Two in Scottsdale, Arizona).

Office of Administrative Hearings (OAH)

An independent state agency to which the Department refers petitions for an evidentiary hearing.

Petitioner

Jason West, the member of the homeowners’ association who filed the petition alleging a violation by the association’s Board.

Petition

A formal complaint filed with the Department of Real Estate by an HOA member or the HOA itself concerning alleged violations.

Preponderance of the evidence

The burden of proof standard required in the hearing. It is defined as “proof as convinces the trier of fact that the contention is more probably true than not” and as evidence with “the most convincing force.”

Respondent

The Desert Sage Two Homeowners Association, the entity against which the petition was filed.

Restrictive Covenant

A rule or provision within community documents, like bylaws, that is enforced to give effect to the intent of the parties if it is unambiguous.

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19F-H1919065-REL

1 source

This text is an Administrative Law Judge Decision from the Arizona Office of Administrative Hearings (OAH) concerning a dispute between a homeowner, Jason West (Petitioner), and his association, the Desert Sage Two Homeowners Association (Respondent). The Petitioner alleged that the Respondent violated Arizona statute (A.R.S. § 33-1804(B)) and an association bylaw by refusing to place his proposed bylaw amendment on the agenda of the annual meeting. The proposed amendment sought to ban directors whose actions resulted in a paid insurance claim from serving for five years, but the Administrative Law Judge (ALJ) found that neither the statute nor the association’s bylaws required the Board to add a member-proposed item to a scheduled agenda or ballot. Therefore, the ALJ concluded that the Petitioner failed to prove a violation and denied the petition.

1 source

What was the specific legal and procedural context of this homeowners association dispute?
How did the Petitioner’s proposed bylaw amendment attempt to alter Board member liability?
What statutory and bylaw provisions guided the final Administrative Law Judge decision?

Based on 1 source

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NotebookLM can be inaccurate; please double check its responses.

Case Participants

Petitioner Side

  • Jason West (petitioner)

Respondent Side

  • Bradley R. Jardine (HOA attorney)
    Jardine, Baker, Hickman, & Houston, PLLC
    Represented Respondent
  • Edward A. Padilla (property manager)
    Desert Sage Two Homeowners Association
    Property manager in May 2017; testified for Petitioner; also referred to as 'Eddie'
  • Joanelize Morales (property manager)
    Desert Sage Two Homeowners Association
    Property manager since August 2018; testified for Petitioner
  • Bryan Robert Selna (board member)
    Desert Sage Two Homeowners Association
    Current Vice President of Respondent's Board; testified for Petitioner
  • David Epstein (board member)
    Desert Sage Two Homeowners Association
    Current President of Respondent's Board; testified for Petitioner
  • Linda Maria Seidler (board member)
    Desert Sage Two Homeowners Association
    Current Secretary of Respondent's Board; testified for Petitioner
  • Michael David Latz (property manager)
    Golden Valley Property Management
    Owner of Golden Valley Property Management; testified for Petitioner; also referred to as 'Mickey'

Neutral Parties

  • Diane Mihalsky (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (ADRE Commissioner)
    Arizona Department of Real Estate

Thomas J Van Dan Elzen v. Carter Ranch Homeowners Association

Posted on by

Case Summary

Case ID 19F-H1919071-REL-RHG
Agency ADRE
Tribunal OAH
Decision Date 2020-01-30
Administrative Law Judge Velva Moses-Thompson
Outcome loss
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Thomas J. Van Dan Elzen Counsel —
Respondent Carter Ranch Homeowners Association Counsel Augustus H. Shaw IV, Esq.

Alleged Violations

A.R.S. § 33-1808

Outcome Summary

The Administrative Law Judge dismissed the Petitioner's case, finding that the Petitioner failed to meet the burden of proof to establish that the Respondent HOA violated A.R.S. § 33-1808 or improperly adopted its Flag Display Rule.

Why this result: Petitioner failed to establish a violation of A.R.S. § 33-1808 and failed to prove that the HOA's Flag Display Rule was inconsistent with or improperly adopted under the CC&Rs.

Key Issues & Findings

Flags and Sings

Petitioner Thomas J. Van Dan Elzen filed a petition arguing that the HOA violated A.R.S. § 33-1808 after being notified he violated Association Rules by displaying a “Trump 2020” flag. He argued the HOA's Flag Display Rule was invalid because the CC&Rs only defined SIGNS (DCC&R 3.14) and had no reference to Flags whatsoever, thus the rule was inconsistent with the CC&Rs.

Orders: Petitioner Thomas J. Van Dan Elzen’s petition is dismissed. Respondent is deemed to be the prevailing party.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 33-1808
  • A.A.C. R2-19-119
  • BLACK'S LAW DICTIONARY 1182 (6th ed. 1990)
  • 4 United States Code sections 4 through 10
  • ARIZ. REV. STAT. section 32-2199.02(B)
  • ARIZ. REV. STAT. section 12-904(A)

Analytics Highlights

Topics: Flag Display, Political Sign, CC&Rs, Rules & Regulations
Additional Citations:

  • A.R.S. § 33-1808
  • A.A.C. R2-19-119
  • 4 United States Code sections 4 through 10

Video Overview

Audio Overview

Decision Documents

19F-H1919071-REL Decision – 767071.pdf

Uploaded 2026-04-24T11:21:58 (69.0 KB)

19F-H1919071-REL Decision – 741807.pdf

Uploaded 2026-04-24T11:22:08 (78.9 KB)

Administrative Hearing Briefing: Van Dan Elzen v. Carter Ranch HOA

Executive Summary

This document provides a comprehensive analysis of the Administrative Law Judge (ALJ) Decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (HOA), case number 19F-H1919071-REL-RHG. The dispute centered on the HOA’s prohibition of a “Trump 2020” flag displayed by Mr. Van Dan Elzen at his property. The petitioner alleged this prohibition violated Arizona state law.

The ALJ ultimately dismissed the petition, ruling in favor of the Carter Ranch HOA. The decision was based on the petitioner’s failure to prove by a preponderance of the evidence that the HOA’s “Flag Display Rule” was inconsistent with its foundational Covenants, Conditions, and Restrictions (CC&Rs) or that the rule was improperly adopted. Crucially, the ALJ found that the petitioner had not sufficiently alleged a direct violation of the relevant state statute, A.R.S. § 33-1808. The ruling effectively upholds the HOA’s authority, granted by its CC&Rs, to regulate the display of flags not explicitly protected by Arizona law.

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I. Case Overview

• Case Name: Thomas J. Van Dan Elzen, Petitioner, vs. Carter Ranch Homeowners Association, Respondent.

• Case Number: 19F-H1919071-REL-RHG

• Adjudicating Body: Arizona Office of Administrative Hearings

• Presiding Judge: Administrative Law Judge Velva Moses-Thompson

• Hearing Date: January 10, 2020

• Decision Date: January 30, 2020

• Subject of Dispute: The validity of an HOA rule prohibiting the display of a “Trump 2020” political flag, which the petitioner claimed violated A.R.S. § 33-1808.

II. Chronology of Key Events

• May 21, 2019: Carter Ranch HOA notifies petitioner Thomas J. Van Dan Elzen that his “Trump 2020” flag violates Association Rules.

• June 14, 2019: Mr. Van Dan Elzen files a petition with the Arizona Department of Real Estate, alleging the HOA violated A.R.S. § 33-1808.

• November 18, 2019: The Department of Real Estate issues an order setting the matter for a rehearing.

• January 10, 2020: The rehearing is held before an Administrative Law Judge.

III. Petitioner’s Position (Thomas J. Van Dan Elzen)

Mr. Van Dan Elzen’s case was predicated on the argument that the HOA’s rules regarding flags were inconsistent with its own governing documents, specifically the Covenants, Conditions, and Restrictions (CC&Rs).

• Core Allegation: The HOA’s enforcement action violated A.R.S. § 33-1808, which governs flags and signs.

• Primary Argument: Mr. Van Dan Elzen contended that the HOA’s “Flag Display Rule” was invalid because the CC&Rs do not explicitly mention the word “flag.” He argued that the relevant section of the governing documents, DCC&R 3.14, only defines “SIGNS.”

• Direct Quotation from Petition: The petition stated the following, highlighting the perceived discrepancy:

IV. Respondent’s Position (Carter Ranch HOA)

The Carter Ranch HOA maintained that its “Flag Display Rule” was valid, properly enacted, and did not violate state law or its own governing documents.

• The “Flag Display Rule”: The HOA’s rules explicitly prohibit flying any flag other than those on an approved list, which includes:

◦ The American Flag

◦ Official flags of the U.S. Army, Navy, Air Force, Marine Corps, or Coast Guard

◦ A POW/MIA flag

◦ An Arizona Indian National flag

◦ The Arizona State flag

◦ The Gadsden Flag

• Authority to Regulate: The HOA asserted its authority to create this rule stemmed from Article V, Section 5.3 of its CC&Rs. This section grants the Board the power to adopt, amend, and repeal rules pertaining to “the health, safety or welfare of the owners… or restrictions on the use of Lots.” It also specifies that such rules are “enforceable in the same manner” as the CC&Rs themselves.

• Defense Arguments: The HOA contended that the petition should be dismissed because:

1. The Flag Display Rule was not inconsistent with the CC&Rs.

2. The rule was properly adopted under the authority granted in the CC&Rs.

3. The petitioner failed to allege that the HOA had actually violated a specific statute or provision of its governing documents.

V. Analysis of Governing Law: A.R.S. § 33-1808

This Arizona Revised Statute was central to the dispute. It places specific limitations on an HOA’s ability to regulate the display of certain flags and political signs.

Provision

Description of Regulation

Subsection A: Protected Flags

An HOA cannot prohibit the outdoor display of: The American flag (if displayed consistent with federal code), official U.S. military flags, the POW/MIA flag, the Arizona state flag, an Arizona Indian nations flag, or the Gadsden flag.

Subsection C: Political Signs

An HOA cannot prohibit the display of political signs on a member’s property, but may regulate them. Permissible regulations include:
• Time: Prohibiting display earlier than 71 days before an election and later than 3 days after an election.
• Size & Number: Regulations must be no more restrictive than applicable city/county ordinances. If no such ordinance exists, the HOA cannot limit the number of signs, but can cap the maximum aggregate dimensions at nine square feet.

• Definition of “Political Sign”: The statute defines a political sign as “a sign that attempts to influence the outcome of an election.”

VI. Administrative Law Judge’s Decision and Order

The ALJ concluded that the petitioner failed to meet the required burden of proof, which is to prove a violation by a preponderance of the evidence.

1. Rule Consistency: The ALJ concluded that the “Petitioner has not established that the Flag Display Rule was inconsistent with the CC&Rs.”

2. Rule Adoption: The ALJ found that the “Petitioner has not established that the Association improperly adopted the Flag Display Rule under its CC&Rs.”

3. Failure to Allege Violation: The judge noted that the “Petitioner has not alleged that Carter Ranch violated A.R.S. § 33-1808.” This indicates a failure in the petition’s framing to connect the HOA’s actions to a specific statutory prohibition.

4. Final Determination: Based on these conclusions, the judge determined that “Mr. Van Dan Elzen’s petition should be dismissed and the Respondent be deemed to be the prevailing party in this matter.”

• Dismissal: “IT IS ORDERED that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed.”

• Binding Nature: The order is binding on the parties as it resulted from a rehearing.

• Appeal Rights: Any appeal must be filed with the superior court within 35 days from the date the order was served.

Study Guide: Van Dan Elzen v. Carter Ranch Homeowners Association

This study guide provides a detailed review of the Administrative Law Judge Decision in the case of Thomas J. Van Dan Elzen versus the Carter Ranch Homeowners Association (No. 19F-H1919071-REL-RHG). The guide includes a short-answer quiz with an answer key, a set of essay questions for deeper analysis, and a comprehensive glossary of key terms found within the legal decision.

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Quiz: Test Your Understanding

Answer the following questions in two to three sentences each, based on the information in the provided source text.

1. Who were the primary parties involved in this case, and what were their respective roles?

2. What specific action taken by Thomas J. Van Dan Elzen initiated the dispute with the Carter Ranch Homeowners Association?

3. What was Mr. Van Dan Elzen’s central argument for why the HOA’s Flag Display Rule was invalid?

4. On what authority did the Carter Ranch HOA claim it had the right to create and enforce its Flag Display Rule?

5. According to the HOA’s “Flag Display Rule,” which specific flags are homeowners permitted to fly?

6. What is the legal standard of proof the petitioner was required to meet in this hearing, and how is it defined in the decision?

7. What protection does Arizona Revised Statutes (A.R.S.) § 33-1808(C) provide for “political signs”?

8. What were the two key failures of the petitioner’s case, as identified in the Administrative Law Judge’s conclusions of law?

9. What was the final ruling, or “Order,” issued by the Administrative Law Judge in this case?

10. What are the next steps for a party wishing to challenge the Administrative Law Judge’s order?

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Quiz Answer Key

1. The primary parties were the Petitioner, Thomas J. Van Dan Elzen, who brought the complaint, and the Respondent, Carter Ranch Homeowners Association, which was defending its actions. Mr. Van Dan Elzen represented himself, while the HOA was represented by its attorney, Augustus H. Shaw IV, Esq.

2. The dispute began on or about May 21, 2019, when the Carter Ranch HOA notified Mr. Van Dan Elzen that he had violated its rules by displaying a “Trump 2020” flag in his front yard. This notice of violation prompted Mr. Van Dan Elzen to file a petition with the Arizona Department of Real Estate.

3. Mr. Van Dan Elzen’s central argument was that the Flag Display Rule was inconsistent with the community’s Covenants, Conditions and Restrictions (CC&Rs). He contended that because CC&R section 3.14 only defines “SIGNS” and makes no reference to “Flags,” the HOA had no basis in the CC&Rs to regulate his flag.

4. The Carter Ranch HOA asserted its authority based on Article V, Section 5.3 of its CC&Rs. This section grants the HOA Board the power to adopt, amend, and repeal rules and regulations pertaining to the health, safety, or welfare of the owners and restrictions on the use of Lots.

5. The HOA’s Flag Display Rule prohibits flying any flag other than the American Flag, an official replica of a U.S. military flag (Army, Navy, Air Force, Marine Corps, or Coast Guard), a POW/MIA flag, an Arizona Indian National flag, the Arizona State flag, and the Gadsden Flag.

6. The petitioner was required to prove his case by a “preponderance of the evidence.” The decision defines this as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

7. A.R.S. § 33-1808(C) prevents an HOA from prohibiting the display of political signs on a member’s property, although it allows for regulation. An HOA cannot prohibit political signs earlier than 71 days before an election or later than three days after, and its rules on size and number can be no more restrictive than applicable city or county ordinances.

8. The Judge concluded that the petitioner failed to establish that the Flag Display Rule was improperly adopted or inconsistent with the CC&Rs. Furthermore, the Judge concluded that the petitioner had not actually alleged that Carter Ranch violated the specific statute he cited, A.R.S. § 33-1808.

9. The final Order was that Petitioner Thomas J. Van Dan Elzen’s petition is dismissed. The Judge also deemed the Respondent, Carter Ranch HOA, to be the prevailing party in the matter.

10. A party wishing to appeal the order must seek judicial review by filing an appeal with the superior court. This appeal must be filed within thirty-five days from the date the order was served upon the parties, as prescribed by state statutes.

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Essay Questions for Deeper Analysis

The following questions are designed to encourage a more in-depth analysis of the case. No answers are provided.

1. Analyze the petitioner’s argument that the Flag Display Rule was invalid because the word “flag” does not appear in the CC&Rs. Why was this argument ultimately unconvincing to the Administrative Law Judge?

2. Explain the legal distinction between a “flag” and a “political sign” as presented in A.R.S. § 33-1808. How might the petitioner’s case have differed if he had argued his “Trump 2020” flag was a “political sign” instead of a flag?

3. Discuss the authority granted to the Carter Ranch HOA Board by Article V, Section 5.3 of its CC&Rs. How did the HOA use this section to justify its Flag Display Rule, and why was this justification accepted by the court?

4. Evaluate the Administrative Law Judge’s conclusion that the petitioner “has not alleged that Carter Ranch violated A.R.S. § 33-1808.” How can this be true when the petitioner’s initial filing explicitly cited this statute?

5. Based on the provided text of A.R.S. § 33-1808, under what specific circumstances could a homeowner in Carter Ranch successfully challenge the HOA’s rules on outdoor displays?

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

A judge who presides over administrative hearings. In this case, Velva Moses-Thompson served as the ALJ in the Office of Administrative Hearings.

A.R.S. (Arizona Revised Statutes)

The codified collection of laws for the state of Arizona. The case centered on an alleged violation of A.R.S. § 33-1808.

CC&Rs (Covenants, Conditions and Restrictions)

The governing legal documents that set up the guidelines for a planned community or subdivision. The Carter Ranch CC&Rs grant the HOA Board the authority to adopt rules and regulations.

Department

Refers to the Arizona Department of Real Estate, the state agency authorized to receive and decide petitions from members of homeowners’ associations.

Flag Display Rule

The specific rule created by the Carter Ranch HOA that prohibits flying any flag other than the American, military, POW/MIA, Arizona Indian National, Arizona State, and Gadsden flags.

Homeowners’ Association (HOA)

An organization in a subdivision, planned community, or condominium that makes and enforces rules for the properties and its residents. The Carter Ranch Homeowners Association is the Respondent in this case.

Petitioner

The party who files a petition or brings a legal action against another party. In this case, the petitioner is Thomas J. Van Dan Elzen.

Political Sign

Defined by A.R.S. § 33-1808(C) as “a sign that attempts to influence the outcome of an election.” HOAs are restricted in their ability to prohibit the display of such signs.

Preponderance of the evidence

The burden of proof required in this proceeding. It is defined as “Evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it,” meaning the fact is more probable than not.

Prevailing Party

The party who wins the legal case. The Administrative Law Judge deemed the Respondent (Carter Ranch HOA) to be the prevailing party.

Rehearing

A second hearing of a case to reconsider the issues. This case was decided as a result of a rehearing held on January 10, 2020.

Respondent

The party against whom a petition is filed; the party who must respond to the complaint. In this case, the respondent is the Carter Ranch Homeowners Association.

He Fought the HOA Over a Political Flag—And Lost. Here Are 3 Surprising Reasons Why.

Introduction: The Pride and the Problem

Imagine this: You want to display a flag on your own property to support a political candidate. It feels like a fundamental right, an expression of free speech on your home turf. But then, a letter arrives from your Homeowners Association (HOA) citing you for a violation. This exact scenario happened to Thomas J. Van Dan Elzen, who displayed a “Trump 2020” flag and promptly received a violation notice from the Carter Ranch HOA in Arizona.

Believing the HOA was overstepping its authority, Mr. Van Dan Elzen took them to court. He lost. The outcome might seem counter-intuitive, but the court’s decision reveals crucial lessons for any homeowner living under an HOA. Here are the three surprising legal reasons why the HOA won.

1. The Power of the Fine Print: Why a “Loophole” Wasn’t Enough

Mr. Van Dan Elzen built his case on a clever textual argument. He alleged that the HOA’s rule against his flag was invalid because the section of the master community documents—the Covenants, Conditions, and Restrictions (CC&Rs)—he believed it was based on only regulated “SIGNS” and made no mention of “FLAGS.” He argued that since the document didn’t explicitly prohibit flags, the rule against his was unenforceable.

This seemingly logical “loophole” argument failed. The HOA countered by pointing to a different, much broader clause in their CC&Rs. Article V, Section 5.3, gave the HOA board expansive power to create new rules.

The Board may, from time to time, adopt, amend and repeal rules and regulations pertaining to: … (iii) the health, safety or welfare of the owners, Lessees and Residence, or (iv) restrictions on the use of Lots…

This general power to create rules for the “welfare of the owners” was enough to give the HOA the legal authority to regulate flags, even if the word “flag” wasn’t in the specific section the homeowner cited. The broad power to govern trumped the narrow, semantic argument.

2. A Flag Is Not a Sign (At Least, Not According to the Law)

While the homeowner’s flag was political in nature, it did not receive the legal protections granted to “political signs” under Arizona law. This distinction proved fatal to his case.

The relevant statute, A.R.S. § 33-1808, is highly specific about which flags an HOA is forbidden from prohibiting. The protected list includes: the American flag, official military branch flags, the POW/MIA flag, the Arizona state flag, Arizona Indian nations flags, and the Gadsden flag. Critically, the Carter Ranch HOA’s own Flag Display Rule mirrored this state-approved list exactly, demonstrating they had aligned their regulations with the law. A political campaign flag, like “Trump 2020,” is not on this protected list.

The same law does protect political signs, but it defines them very precisely:

“political sign” means a sign that attempts to influence the outcome of an election, including supporting or opposing the recall of a public officer or supporting or opposing the circulation of a petition for a ballot measure, question or proposition or the recall of a public officer.

The key takeaway is that the law treats a political flag differently from a political sign. Because the “Trump 2020” item was a flag and not on the state’s protected flag list, the HOA was well within its rights to restrict its display based on its own community rules.

3. A Critical Misstep: Arguing the Wrong Point

The most decisive reason for the loss was not a procedural error, but a substantive legal failure. Mr. Van Dan Elzen filed his petition with the state on the grounds that the HOA had violated a specific state law, A.R.S. § 33-1808, which governs flags and political signs.

However, his entire case was built on arguing that the HOA’s internal rules were inconsistent with its own CC&Rs—the “sign” versus “flag” argument. This was the wrong legal target. To win, he had to prove that the HOA had violated the state statute. But the statute explicitly allows an HOA to regulate any flag not on the protected list. By regulating his “Trump 2020” flag, the HOA was doing exactly what the state law permitted. His argument about internal documents, even if correct, did not add up to a violation of the state law he sued under.

The Administrative Law Judge recognized this fundamental flaw, concluding that the homeowner hadn’t actually made a case for a statutory violation at all.

Moreover, Petitioner has not alleged that Carter Ranch violated A.R.S. § 33-1808.

This is a crucial lesson: it’s not enough to feel wronged. Your argument must directly prove that the specific law you cite in your complaint has actually been broken. The homeowner’s claim was dismissed because his central argument was irrelevant to the law he needed to prove was violated.

Conclusion: Know Your Rights, and Your Rules

The case of the “Trump 2020” flag is a powerful illustration for homeowners everywhere. It highlights three critical realities of living in an HOA: the broad rule-making power granted by community documents can override perceived loopholes; state laws make very specific and narrow distinctions between protected items like signs and flags; and a sound legal strategy is paramount.

This case is a stark reminder that in an HOA, your property rights are defined not by what you feel is right, but by what is written down. Before you make a stand, are you certain you’re fighting the right battle on the right legal ground?

Case Participants

Petitioner Side

  • Thomas J. Van Dan Elzen (petitioner)
    Appeared and testified on his own behalf

Respondent Side

  • Augustus H. Shaw IV (attorney)
    Shaw & Lines LLC
    Appeared for Carter Ranch Homeowners Association

Neutral Parties

  • Velva Moses-Thompson (ALJ)
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate

Other Participants

  • Dustin Snow (property manager)
    SNOW PROPERTY SERVICES
    Recipient of order transmission

Dennis J Gregory v. Four Seasons at the Manor Homeowners Association

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Case Summary

Case ID 19F-H1919069-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-24
Administrative Law Judge Antara Nath Rivera
Outcome The Petitioner's petition alleging violations of the HOA's CC&Rs and A.R.S. § 33-1803 was denied because the Petitioner failed to meet the burden of proof. The HOA had acknowledged its error regarding the palm trees, issued an apology, and expunged the record, thereby resolving the substantive dispute and making the remaining allegations moot.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner Dennis J Gregory Counsel —
Respondent Four Seasons at the Manor Homeowners Association Counsel Marc Vasquez

Alleged Violations

8.1.7 of CC&Rs; A.R.S. § 33-1803

Outcome Summary

The Petitioner's petition alleging violations of the HOA's CC&Rs and A.R.S. § 33-1803 was denied because the Petitioner failed to meet the burden of proof. The HOA had acknowledged its error regarding the palm trees, issued an apology, and expunged the record, thereby resolving the substantive dispute and making the remaining allegations moot.

Why this result: Petitioner failed to establish that Respondent violated governing documents or statute when the Respondent had already resolved the underlying issue by apology and expungement, and no financial penalties were assessed.

Key Issues & Findings

Violation of Governing Documents and Planned Community Statute

Petitioner filed a two-issue petition alleging Respondent violated CC&Rs and A.R.S. § 33-1803 by fraudulently sending a courtesy notice regarding unapproved palm trees and subsequently deceiving Petitioner, despite the underlying tree issue being resolved and expunged.

Orders: Petitioner's petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: petitioner_loss

Cited:

  • A.R.S. § 32-2199(B)
  • Title 33, Chapter 16.1
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Analytics Highlights

Topics: HOA dispute, Planned Community Statute, CC&Rs violation, Expungement of record, Mootness
Additional Citations:

  • A.R.S. § 32-2199(B)
  • Title 33, Chapter 16.1
  • A.R.S. § 33-1803
  • A.R.S. § 41-1092.07(G)(2)
  • A.A.C. R2-19-119(A)
  • A.A.C. R2-19-119(B)(1)
  • A.A.C. R2-19-119(B)(2)

Video Overview

Audio Overview

Decision Documents

19F-H1919069-REL Decision – 740332.pdf

Uploaded 2026-04-24T11:21:33 (85.6 KB)

19F-H1919069-REL Decision – 740332.pdf

Uploaded 2026-01-23T17:29:41 (85.6 KB)

Briefing Document: Gregory v. Four Seasons at the Manor HOA (Case No. 19F-H1919069-REL)

Executive Summary

This document provides an analysis of the Administrative Law Judge Decision in Case No. 19F-H1919069-REL, concerning a petition filed by homeowner Dennis Gregory against the Four Seasons at the Manor Homeowners Association (HOA). The petition was ultimately denied.

The dispute originated from an incorrect violation notice sent by the HOA on July 13, 2018, regarding palm trees on the Petitioner’s property. The HOA subsequently discovered its error, recognizing the trees were on its “Recommended Plant List.” Consequently, the HOA issued a formal apology to the Petitioner on August 16, 2018, and expunged the violation notice from all records. No fines or penalties were ever imposed.

Despite the resolution, the Petitioner filed a formal dispute petition with the Arizona Department of Real Estate on May 24, 2019. He alleged the initial notice was fraudulent and that an employee of the HOA’s management company had lied and threatened him. The Administrative Law Judge, Antara Nath Rivera, concluded that the Petitioner failed to meet the burden of proof. The Judge determined that the HOA’s prompt corrective actions—issuing an apology, retracting the notice, and imposing no fines—rendered the issue moot.

Case Overview

The hearing addressed a petition filed by Dennis Gregory alleging that the Four Seasons at the Manor Homeowners Association violated its Covenants, Conditions, and Restrictions (CC&Rs) and Arizona state law.

Case Detail

Information

Case Number

19F-H1919069-REL

Petitioner

Dennis J Gregory

Respondent

Four Seasons at the Manor Homeowners Association

Presiding Judge

Antara Nath Rivera, Administrative Law Judge

Hearing Date

September 4, 2019

Decision Date

September 24, 2019

Chronology of Events

• July 13, 2018: The HOA sends a courtesy notice to Dennis Gregory requesting the removal of palm trees, citing a violation of the CC&Rs.

• Post-July 13, 2018: Gregory disputes the violation. Upon review, the HOA discovers the palm trees are on its “Recommended Plant List” and therefore permissible.

• August 16, 2018: The HOA sends Gregory a letter of apology via both email and postal mail, deeming the violation notice invalid.

• May 24, 2019: Gregory files a two-issue Homeowners Association Dispute Process Petition with the Arizona Department of Real Estate.

• June 28, 2019: The HOA files its formal answer to the petition.

• September 4, 2019: An administrative hearing is conducted, with testimony from Gregory and Marc Vasquez, Vice President of the HOA’s management company.

• September 24, 2019: The Administrative Law Judge issues a decision denying the petition.

Petitioner’s Allegations and Testimony

Dennis Gregory filed the petition after the palm tree issue was resolved because he was upset with the HOA’s handling of the matter. His testimony and allegations included:

• Primary Motivation: He believed the HOA “fraudulently sent the courtesy letter.”

• Allegations of Deception:

◦ The HOA lied about the Board members discussing the palm tree issue prior to sending the notice.

◦ Annette McCraw of Trestle Management Group lied to him about speaking with the board.

◦ The HOA deceptively changed the CC&Rs regarding the names of permitted trees.

◦ The HOA failed to disclose the identity of the individual who falsely claimed his palm trees were poisonous.

• Allegations of Misconduct: He stated that Annette McCraw had threatened him with a lawyer.

• Legal Claim: He opined that these actions constituted a violation of the community’s CC&Rs (specifically 8.1.7) and Arizona Revised Statutes § 33-1803.

• Acknowledged Facts: During his testimony, Gregory confirmed that the HOA never imposed any fines and that he received the apology letter issued on August 16, 2018.

Respondent’s Position and Actions

The HOA, represented by Marc Vasquez of Trestle Management Group, maintained that it had taken all necessary steps to rectify its initial error.

• Admission of Error: The Respondent acknowledged that the initial violation notice was sent in error.

• Corrective Measures:

◦ It issued a formal apology letter once the mistake was identified.

◦ The courtesy letter was “removed and expunged” from both the Respondent’s and Petitioner’s records to preserve the Petitioner’s good standing.

◦ Marc Vasquez personally apologized to Gregory at a board meeting.

• No Penalties: The Respondent confirmed that no fines or sanctions were ever imposed on the Petitioner.

• Personnel Status: Vasquez testified that Annette McCraw, the employee accused of misconduct by the Petitioner, was no longer employed by Trestle Management Group.

Administrative Law Judge’s Conclusions and Order

The Administrative Law Judge denied the petition, finding that the Petitioner failed to prove his case by a preponderance of the evidence.

Legal Reasoning

1. Burden of Proof: The decision established that the Petitioner bore the burden of proving that the HOA violated its CC&Rs and state statutes. The standard of proof required was a “preponderance of the evidence,” meaning evidence sufficient to convince a trier of fact that a contention is more probably true than not.

2. Failure to Meet Burden: The Judge concluded that the Petitioner failed to meet this standard. This conclusion was based on several key facts established during the hearing:

◦ The Petitioner himself acknowledged that he was never financially penalized.

◦ The Petitioner acknowledged receipt of the HOA’s apology letter.

◦ Evidence showed the palm trees were, in fact, compliant with HOA rules.

◦ The violation notice was officially “removed and expunged” from all records.

3. Mootness of the Issue: The decision states, “the preponderance of the evidence showed Respondent did not violate any rules or regulations that would facilitate any orders or sanctions once it issued the apology letter, thus making the issue moot.” The HOA’s corrective actions effectively nullified the original dispute before it escalated to the point of requiring legal sanctions.

Final Order

“IT IS ORDERED that Petitioners’ petition is denied.”

The decision also included a notice that the order is binding unless a request for rehearing is filed with the Commissioner of the Department of Real Estate within 30 days of the service of the order, pursuant to A.R.S. § 41-1092.09.

Study Guide: Gregory v. Four Seasons at the Manor HOA

This guide provides a comprehensive review of the Administrative Law Judge Decision in case No. 19F-H1919069-REL, concerning Dennis J Gregory and the Four Seasons at the Manor Homeowners Association. It includes short-answer questions with an answer key, essay questions for deeper analysis, and a glossary of key terms found within the legal decision.

Quiz: Short-Answer Questions

Answer the following questions in two to three complete sentences, using only information found in the case decision.

1. Who were the primary parties involved in this administrative hearing, and what were their roles?

2. What was the initial action by the Homeowners Association that triggered the dispute with the Petitioner?

3. What specific violations did the Petitioner, Dennis Gregory, allege in his Homeowners Association Dispute Process Petition?

4. How did the Respondent discover its error regarding the Petitioner’s palm trees?

5. What two specific actions did the Respondent take to rectify its error before the hearing took place?

6. Why did the Petitioner proceed with the hearing even after the Respondent retracted the violation notice and apologized?

7. Who was Annette McCraw, and what specific actions did the Petitioner accuse her of taking?

8. What is the “preponderance of the evidence,” and what was its significance in the judge’s decision?

9. According to the judge’s findings, why was the central issue of the dispute considered moot?

10. What was the final Order issued by the Administrative Law Judge in this case?

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Answer Key

1. The primary parties were Dennis J Gregory, the homeowner, who served as the Petitioner, and the Four Seasons at the Manor Homeowners Association, which was the Respondent. Marc Vasquez, vice president of Trestle Management Group, appeared on behalf of the Respondent.

2. The dispute was triggered when the Respondent, on July 13, 2018, sent the Petitioner a courtesy notice requesting the removal of palm trees from his front yard. The notice claimed the trees were a violation of the association’s CC&Rs.

3. The Petitioner alleged that the Respondent violated section 8.1.7 of its Covenants, Conditions, and Restrictions (CC&Rs) and the Arizona Revised Statute (A.R.S.) § 33-1803.

4. After the Petitioner disputed the violation, the Respondent conducted a further review. Through this review, the Respondent discovered that the palm trees on the Petitioner’s property were actually listed on the “Recommended Plant List” and were therefore acceptable.

5. First, the Respondent issued a courtesy letter to the Petitioner on August 16, 2018, apologizing for the misunderstanding. Second, the Respondent deemed the original violation notice invalid and had it “removed and expunged” from both its own and the Petitioner’s records to preserve his good standing.

6. The Petitioner proceeded with the hearing because he was upset and believed the Respondent had acted fraudulently. He alleged the Respondent lied about discussing the issue with board members, deceptively changed the CC&Rs, and failed to disclose who made the initial complaint.

7. Annette McCraw was an employee of Trestle Management Group, the Respondent’s management company. The Petitioner accused her of lying about speaking with board members regarding the palm tree issue and threatening him with a lawyer.

8. “Preponderance of the evidence” is the standard of proof required, defined as evidence convincing the trier of fact that a contention is more probably true than not. Its significance is that the Petitioner bore this burden of proof and ultimately failed to meet it, leading to the denial of his petition.

9. The issue was considered moot because the Respondent had already issued an apology letter and rescinded the violation notice before the hearing occurred. Since the Petitioner was never fined, the palm trees were deemed acceptable, and the notice was expunged, there was no longer an active controversy for the court to resolve.

10. The final Order, issued on September 24, 2019, was that the Petitioner’s petition is denied. The Order was binding unless a rehearing was requested within 30 days.

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Essay Questions

Construct detailed responses to the following prompts, drawing evidence and arguments exclusively from the provided legal decision.

1. Analyze the concept of a “moot” issue as it applies to this case. How did the Respondent’s actions before the hearing render the Petitioner’s primary complaint moot in the eyes of the law, despite the Petitioner’s ongoing grievances?

2. Discuss the burden of proof in this administrative hearing. Explain the “preponderance of the evidence” standard as defined in the document and detail the specific reasons why the Administrative Law Judge concluded that Dennis Gregory failed to meet this burden.

3. Examine the roles and conduct of the management company, Trestle Management Group, and its employee, Annette McCraw. Based on the testimony presented, what specific actions escalated the conflict even after the initial landscaping error was identified and corrected?

4. Trace the timeline of events from the initial “courtesy notice” of July 13, 2018, to the final Order of September 24, 2019. Identify the key turning points and decisions made by both the Petitioner and the Respondent that influenced the outcome of the case.

5. Although the Petitioner lost the case, he raised several allegations beyond the palm trees, including fraud, deception, and threats. Using only the evidence presented in the decision, construct the argument that Dennis Gregory was attempting to make regarding why these subsequent actions constituted a violation of the planned community statute, even if the original tree issue was resolved.

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Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official who presides over the administrative hearing and issues a decision. In this case, the ALJ was Antara Nath Rivera.

Answer

The Respondent’s formal written response to the Petition, filed in this case on June 28, 2019.

A.R.S. (Arizona Revised Statutes)

The collection of laws for the state of Arizona. The decision cites A.R.S. § 33-1803, which authorizes HOAs to enforce CC&Rs, and statutes governing the hearing and rehearing process.

Burden of Proof

The obligation of a party to establish its claims by a required degree of evidence. In this hearing, the Petitioner had the burden of proof.

CC&Rs (Covenants, Conditions, and Restrictions)

The governing documents that establish the rules for a planned community. The Petitioner alleged a violation of section 8.1.7 of the Respondent’s CC&Rs.

Department

The Arizona Department of Real Estate, the state agency with which the Petition was filed and which has jurisdiction over such disputes.

Homeowners Association Dispute Process Petition (Petition)

The formal document filed by a homeowner to initiate a hearing with the Department concerning alleged violations by their homeowners association.

A legal term for a situation where the underlying issue has been resolved, making any ruling on the matter unnecessary. The judge found the case moot because the Respondent had already issued an apology and rescinded the violation notice.

The final and binding decision issued by the Administrative Law Judge. In this case, the Order was to deny the Petitioner’s petition.

Petitioner

The party who initiates a legal action or hearing. In this case, the Petitioner was homeowner Dennis J Gregory.

Preponderance of the Evidence

The standard of proof required in this case. It is defined as “such proof as convinces the trier of fact that the contention is more probably true than not.”

Respondent

The party against whom a petition is filed and who is required to respond. In this case, the Respondent was the Four Seasons at the Manor Homeowners Association.

Trestle Management Group, LLC

The management company employed by the Respondent HOA to handle its operations.

An HOA Admitted It Was Wrong. The Homeowner Sued Anyway—And Lost. Here Are the Surprising Reasons Why.

Introduction: The Familiar Dread of an HOA Letter

For many homeowners, few things cause a spike of anxiety quite like a formal notice from their Homeowners Association (HOA). That crisp envelope often contains a violation notice, sparking a frustrating process of proving compliance or making unwanted changes. But what happens when you prove the HOA was completely wrong, they admit their mistake, and issue a full apology? For most, that’s the end of the story—a clear victory.

This, however, is the story of a homeowner who achieved that victory and then decided to take the HOA to a formal hearing anyway. He had been proven right, the violation was erased, and no fines were ever issued. Yet, he pursued the case and ultimately lost.

How could someone who was proven right end up losing their case? The answer reveals a critical distinction between winning an argument and winning in a court of law.

1. You Can Win the Argument, But Still Lose the Case

The initial dispute was straightforward. The homeowner, Dennis Gregory, received a courtesy notice from his HOA requesting the removal of palm trees from his front yard, which were alleged to be in violation of the community’s Covenants, Conditions, and Restrictions (CC&Rs).

Mr. Gregory disputed the violation. In response, the HOA conducted a further review and made a critical discovery: the palm trees on the property were, in fact, listed on the HOA’s own “Recommended Plant List” and were perfectly acceptable. The HOA had made a mistake. Here, however, the story takes a surprising turn. Mr. Gregory filed his formal petition for a hearing after the HOA had already admitted its error, apologized, and confirmed the issue was resolved.

This sequence of events is the crucial detail of the case. The legal dispute wasn’t about the palm trees—that argument was already won. The case was about the actions taken after the HOA’s error was acknowledged and corrected.

2. A Proactive Apology Can Be a Powerful Legal Shield

Once the HOA realized its mistake, it took several decisive steps to remedy the situation. According to the Administrative Law Judge’s findings, the HOA and its management company:

• Sent a formal apology letter to the homeowner.

• Confirmed the original courtesy notice was “deemed invalid.”

• “Removed and expunged” the violation from the homeowner’s records to preserve his good standing.

• Never issued any fines or financial penalties.

• Took action regarding personnel, as the employee who the homeowner accused of making threats was no longer with the management company by the time of the hearing.

These corrective actions had a profound legal impact. The judge found that because the HOA had already reversed its initial notice, apologized, cleared the homeowner’s record, and addressed the personnel issue, there was no longer an active dispute to rule on. The issue was considered “moot.”

This conclusion was emphasized in the judge’s final decision:

Furthermore, the preponderance of the evidence showed Respondent did not violate any rules or regulations that would facilitate any orders or sanctions once it issued the apology letter, thus making the issue moot.

3. The Law Requires Proof, Not Just Principle

The homeowner’s petition wasn’t just about the palm trees. He testified that he proceeded with the case because he felt he had been wronged by an HOA management employee during the dispute. His petition alleged the HOA had “fraudulently sent the courtesy letter,” lied about discussing the issue with board members, and even “threatened him with a lawyer.” He wasn’t just seeking to correct the record on his landscaping; he was fighting on a matter of principle.

To win his case, however, the homeowner had to meet a specific legal standard: proving his claims by “a preponderance of the evidence.” In simple terms, this means showing that his version of events was more likely to be true than not.

Ultimately, the judge concluded that the homeowner “failed to establish, by a preponderance of the evidence, that Respondent violated the CC&Rs.” This outcome highlights a crucial legal reality: tangible, documented evidence—such as a formal apology letter and an expunged record—often carries more evidentiary weight than a homeowner’s testimony about verbal statements, which can be viewed as a ‘he said, she said’ dispute without additional proof. While the homeowner may have genuinely felt wronged, his feelings could not overcome the HOA’s documented resolution.

Conclusion: A Cautionary Tale for Homeowners and HOAs

The outcome of this dispute offers a powerful lesson for both homeowners and association boards. It demonstrates three core takeaways: a dispute isn’t over until it’s legally resolved, a swift and comprehensive apology can be an effective legal defense, and a deeply felt principle must still be backed by sufficient evidence to prevail in a formal hearing.

This case serves as a fascinating reminder of the complexities of community disputes, leaving us with a final question: At what point does the fight for principle risk overshadowing a practical victory?

Case Participants

Petitioner Side

  • Dennis J Gregory (petitioner)
    Appeared and testified on own behalf

Respondent Side

  • Marc Vasquez (attorney)
    Trestle Management Group
    Appeared for Respondent; testified as vice president of Trestle
  • Annette McCraw (property manager)
    Trestle Management Group, LLC
    Issued letter on behalf of Respondent; no longer with Trestle
  • James A. Baska (management representative)
    Trestle Management Group
    Recipient of decision transmission

Neutral Parties

  • Antara Nath Rivera (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Addressed in transmission of decision

John H. Kelly v. Cortez Canyon Unit Owners Association

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Case Summary

Case ID 19F-H1919060-REL
Agency ADRE
Tribunal OAH
Decision Date 2019-09-13
Administrative Law Judge Jenna Clark
Outcome The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.
Filing Fees Refunded $0.00
Civil Penalties $0.00

Parties & Counsel

Petitioner John H. Kelly Counsel —
Respondent Cortez Canyon Unit Owners Association Counsel Jonathan A. Dessaules

Alleged Violations

ARIZ. REV. STAT. § 33-1243

Outcome Summary

The ALJ concluded that the Petitioner failed to meet the required threshold of 21 valid signatures from eligible voters needed to compel the Association to call a special meeting under ARIZ. REV. STAT. § 33-1243. The petition was consequently denied.

Why this result: Petitioner failed to provide the minimum required 21 valid signatures from eligible unit owners (only 13 were valid) as required by the Association's Bylaws and state statute.

Key Issues & Findings

Alleged violation of failure to call a special meeting to remove a board member.

Petitioner filed a petition alleging the Association failed to call a special meeting to remove a board member after collecting what Petitioner believed were sufficient signatures (36 collected, 21 required). The Association countered that only 13 of those signatures were valid (excluding non-owners, duplicates, and delinquent members ineligible to vote).

Orders: Petitioner’s petition is denied.

Filing fee: $0.00, Fee refunded: No

Disposition: respondent_win

Cited:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

Analytics Highlights

Topics: HOA, Condominium, Special Meeting, Board Member Removal, Petition Signature Validity, Voting Rights, Delinquency
Additional Citations:

  • ARIZ. REV. STAT. § 33-1243
  • ARIZ. REV. STAT. § 32-2102
  • ARIZ. REV. STAT. § 32-2199 et seq.
  • ARIZ. REV. STAT. § 32-2199.05
  • ARIZ. REV. STAT. § 32-2199(2)
  • ARIZ. REV. STAT. § 32-2199.01(A)
  • ARIZ. REV. STAT. § 32-2199.01(D)
  • ARIZ. REV. STAT. § 32-2199.02
  • ARIZ. REV. STAT. § 41-1092 et seq.
  • ARIZ. REV. STAT. § 33-1243(H)(4)
  • ARIZ. REV. STAT. § 33-1243(H)(4)(c)
  • ARIZ. ADMIN. CODE R2-19-119
  • Tierra Ranchos Homeowners Ass'n v. Kitchukov, 216 Ariz. 195, 165 P.3d 173 (App. 2007)

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Video Overview

Audio Overview

Decision Documents

19F-H1919060-REL Decision – 737890.pdf

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19F-H1919060-REL Decision – 737890.pdf

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Administrative Hearing Briefing: Kelly vs. Cortez Canyon Unit Owners Association

Executive Summary

This document summarizes the Administrative Law Judge Decision in case number 19F-H1919060-REL, a dispute between Petitioner John H. Kelly and the Respondent, Cortez Canyon Unit Owners Association (“the Association”). The core issue was whether the Association violated Arizona state law by refusing to call a special meeting to remove a board member, as demanded by a petition initiated by Mr. Kelly.

The Association’s bylaws require a petition signed by at least 25% of eligible voting members—in this case, 21 of the 84 unit owners—to compel such a meeting. Mr. Kelly submitted a petition with 36 signatures. However, upon review, the Association invalidated 23 signatures for specific reasons: 11 were from non-owner renters, 6 were duplicate signatures from units that had already signed, and 6 were from owners whose voting rights were suspended due to being over 15 days delinquent on payments.

This left only 13 valid signatures, well short of the 21 required. The Administrative Law Judge, Jenna Clark, concluded that the Petitioner failed to meet the burden of proof. The evidence clearly demonstrated that the number of valid signatures was insufficient to legally compel the Association to call a special meeting. Consequently, the judge ruled that the Association did not violate Arizona statute § 33-1243 and denied Mr. Kelly’s petition.

Case Overview

Parties Involved

Name / Entity

Details

Petitioner

John H. Kelly

A condominium owner and member of the Cortez Canyon Unit Owners Association. Appeared on his own behalf.

Respondent

Cortez Canyon Unit Owners Association

The homeowners’ association for the Cortez Canyon condominium development in Phoenix, AZ. Represented by Jonathan A. Dessaules, Esq.

Witness

Saundra Garcia

President of the Association’s Board of Directors.

Adjudicator

Jenna Clark

Administrative Law Judge, Arizona Office of Administrative Hearings.

Core Dispute

The central issue adjudicated was whether the Cortez Canyon Unit Owners Association violated Arizona Revised Statute § 33-1243 by failing to call a special meeting for the purpose of removing a board member after receiving a petition from unit owners. The Petitioner alleged that the required number of signatures had been collected, while the Respondent denied this claim, asserting that the petition lacked the requisite number of valid signatures from eligible voters.

Legal and Governance Framework

The dispute was governed by Arizona state law and the Association’s own internal documents.

• Arizona Revised Statute § 33-1243(H)(4): This statute mandates that an association with 1,000 or fewer members must call a special meeting to remove a board member upon receipt of a petition signed by at least 25% of the eligible voters in the association.

• Association Bylaws, Article II, Section 2: Mirrors the state statute, stipulating that a special meeting may be called by unit owners holding at least 25% of the votes in the Association.

• Association Bylaws, Article II, Section 7: Critically, this section states that a unit owner’s right to vote is automatically suspended if they are in arrears on payments (assessments, penalties, etc.) for a period of 15 days. This suspension remains until all payments are brought current.

Petitioner’s Position and Evidence (John H. Kelly)

Mr. Kelly initiated the petition to recall an Association board member. His position and the evidence he presented are summarized as follows:

• Petition Submission: Mr. Kelly, with assistance from others, collected 36 signatures and submitted them to the Association’s then-property management group, Golden Valley.

• Initial Confirmation: He testified that Golden Valley initially informed him that he had secured enough signatures to compel the special meeting.

• Reversal by New Management: A short time later, after the Association’s contract with Golden Valley expired on June 1, 2019, a new property management company informed him that the petition did not meet the signature threshold.

• Key Admission: Mr. Kelly testified that neither he nor his assistants verified whether the signatories were unit owners eligible to vote prior to submitting the petition.

• Argument at Hearing: Mr. Kelly argued that he had submitted a minimum of 23 valid signatures. This included the signature of Jeffery Law, an owner of six units, which Mr. Kelly contended should be counted six times. However, it was established that Mr. Law’s signature was secured after the initial submission and was never provided to the management company.

• Formal Allegation: In his April 29, 2019, filing with the Department, Mr. Kelly stated: “Cortez Canyon has 84 units and 25% is 21 units. Homeowners have collected more than the required 21 home-owner’s signatures. The Cortez Canyon HOA board has stated that they will not schedule the required special meeting.”

Respondent’s Position and Evidence (Cortez Canyon Association)

The Association, represented by its Board President Saundra Garcia, presented a detailed rebuttal based on a thorough review of the submitted petition.

• Receipt of Petition: The Association received the petition with 36 purported unit owner signatures on or about April 19, 2019.

• Signature Verification Process: Upon review, the Association determined that a significant number of signatures were invalid based on the community’s governing documents.

• Disqualification of Signatures: The Association provided a specific breakdown of the 23 signatures it disqualified:

◦ 11 signatures were removed because they were from non-owner renters or occupants.

◦ 6 signatures were removed because they were from units for which another owner’s signature had already been collected (only one vote is permitted per unit).

◦ 6 signatures were removed because the unit owner was ineligible to vote, being more than 15 days delinquent on fines, fees, or dues owed to the Association, as stipulated in the Bylaws.

• Final Tally: After removing the 23 invalid signatures from the 36 submitted, the Association concluded that the petition contained only 13 valid signatures.

• Conclusion: Since 13 signatures is below the required threshold of 21, the Association determined it was not obligated by law or its bylaws to call the special meeting. The signature from the multi-unit owner, Jeffrey Law, was not part of the petition received by the Association and was therefore not considered in its count.

Administrative Law Judge’s Findings and Ruling

The Administrative Law Judge, Jenna Clark, reviewed the evidence and testimony from both parties and issued a decision decisively in favor of the Respondent.

Conclusions of Law

• Burden of Proof: The Judge established that the Petitioner, John H. Kelly, bore the burden of proving by a “preponderance of the evidence” that the Association had violated the statute. A preponderance of evidence is defined as proof that convinces the trier of fact that a contention is more probably true than not.

• Undisputed Facts: The material facts of the case were not at issue. Both parties agreed that 21 valid signatures were required to compel the special meeting.

• Evidence of Record: The Judge found that the evidence presented demonstrated the Petitioner’s failure to meet the required threshold. The decision states, “While Petitioner is correct that he submitted more than twenty-one signatures to the Association, he is incorrect that all of signatures provided were valid.”

• Final Determination on Signatures: The ruling affirmed the Association’s count, concluding, “What the evidence of record reflects is that Petitioner only provided thirteen valid signatures along with his petition to the Association, which was not enough to compel the Association to call a special meeting.”

Final Order

Based on the failure of the Petitioner to sustain his burden of proof, the Administrative Law Judge issued the following order on September 13, 2019:

IT IS ORDERED that Petitioner’s petition be denied.

Study Guide: Kelly v. Cortez Canyon Unit Owners Association (Case No. 19F-H1919060-REL)

This study guide provides a comprehensive review of the Administrative Law Judge Decision in the matter between Petitioner John H. Kelly and Respondent Cortez Canyon Unit Owners Association. It is designed to test and reinforce understanding of the case’s facts, legal arguments, governing documents, and final outcome.

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Part I: Short-Answer Quiz

Instructions: Answer the following ten questions in two to three complete sentences, based solely on the information provided in the case document.

1. Who were the primary parties involved in this hearing, and what were their respective roles?

2. What was the specific violation of Arizona law alleged by the Petitioner in his initial petition to the Department of Real Estate?

3. How many condominium units are in the Cortez Canyon development, and what number of valid signatures was consequently required to compel a special meeting?

4. According to the Association’s Bylaws, what circumstances would cause a Unit Owner to have their voting rights suspended?

5. List the three categories of invalid signatures that the Association identified in its review of the Petitioner’s submission.

6. Who was Jeffery Law, and why was his signature ultimately not counted by the Association?

7. What was the initial assessment given to the Petitioner by the property management group, Golden Valley, and how did it differ from the Association’s final determination?

8. In this type of legal proceeding, who bears the “burden of proof,” and what standard of proof must be met?

9. What was the Administrative Law Judge’s final conclusion regarding the Petitioner’s claim?

10. What was the final ORDER issued by the Administrative Law Judge in this case?

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Part II: Answer Key

1. The primary parties were John H. Kelly, the “Petitioner,” who appeared on his own behalf, and the Cortez Canyon Unit Owners Association, the “Respondent,” which was represented by Jonathan A. Dessaules, Esq. Administrative Law Judge Jenna Clark presided over the hearing. Saundra Garcia, the Association’s Board President, appeared as a witness for the Respondent.

2. The Petitioner alleged that the Association violated ARIZ. REV. STAT. § 33-1243 by failing to call a special meeting for the purpose of removing a board member. He claimed to have collected the required number of signatures from homeowners to compel such a meeting.

3. The Cortez Canyon development has 84 units. Based on the requirement for signatures from 25% of the votes in the Association, a total of 21 valid Unit Owner signatures were required to compel a special meeting.

4. According to Bylaws Article II, Section 7, a Unit Owner’s right to vote is automatically suspended if the owner is in arrears in the payment of any Assessment, monetary penalties, or other fees for a period of fifteen days. This suspension remains in effect until all payments are brought current.

5. The Association determined that of the 36 submitted signatures, 23 were invalid. The categories for invalidation were: eleven signatures from non-owner renters or occupants, six signatures from units where another signature had already been collected, and six signatures from Unit Owners who were ineligible to vote due to being delinquent on payments.

6. Jeffery Law was an Association member and owner of six condominium units. His signature was not counted because the Petitioner secured it after submitting the petition to the management company and never provided it to the Association as part of the formal submission.

7. The former property management group, Golden Valley, initially informed the Petitioner that he had secured enough valid signatures to compel a special meeting. However, after the Association directly reviewed the petition, it determined that only 13 of the signatures were valid, far short of the required 21.

8. In this proceeding, the Petitioner, John H. Kelly, bore the burden of proof. The standard of proof required was a “preponderance of the evidence,” which means providing evidence that is more convincing and has superior weight than the evidence presented by the opposing side.

9. The Administrative Law Judge concluded that the Petitioner failed to sustain his burden of proof. The credible evidence demonstrated that the Petitioner submitted only thirteen valid signatures, which was insufficient to compel the Association to call a special meeting under its Bylaws and state law.

10. The final ORDER, based on the Findings of Fact and Conclusions of Law, was that the Petitioner’s petition be denied.

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Part III: Essay Questions

Instructions: The following questions are designed for longer, essay-style responses. They require a deeper analysis of the case’s themes, legal principles, and procedural elements. Do not provide answers.

1. Analyze the concept of “burden of proof” as it applies to this case. Explain what “preponderance of the evidence” means in this context, who held the burden, and how the failure to meet this standard was the central reason for the judge’s final decision.

2. Discuss the critical importance of an association’s governing documents (CC&Rs and Bylaws) in resolving internal disputes. Use specific articles and sections from the Cortez Canyon Bylaws to illustrate how they definitively established the rules for calling a special meeting and determining voter eligibility, leaving little room for interpretation.

3. Evaluate the Petitioner’s strategy and execution in collecting signatures for his petition. Identify the critical errors he and his assistants made in the process, and outline the specific steps he could have taken to verify signatures and ensure his petition was valid before its submission.

4. Explain the legal and practical distinctions between a Unit Owner, an occupant/renter, and an “eligible voter” within the context of the Cortez Canyon Unit Owners Association. How did the Petitioner’s failure to understand these distinctions become the central point of failure for his petition?

5. Imagine you are advising the Cortez Canyon Board of Directors following this hearing. Based on the evidence and outcome of the case, what recommendations would you make regarding their procedures for validating petitions and their communication with Unit Owners about voting rights, petition requirements, and the consequences of financial delinquency?

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Part IV: Glossary of Key Terms

Definition

Administrative Law Judge (ALJ)

The official (Jenna Clark) who presides over hearings at the Office of Administrative Hearings, reviews evidence, and makes legal findings and conclusions.

Answer

The formal written response filed by the Respondent (the Association) on May 28, 2019, denying the Petitioner’s allegations.

ARIZ. REV. STAT.

Abbreviation for Arizona Revised Statutes, which are the codified laws of the state of Arizona. The specific statute at issue was § 33-1243.

Association

The Cortez Canyon Unit Owners Association, the governing body for the condominium development, comprised of all unit owners.

Board of Directors (the Board)

The group of individuals that oversees the Association, as empowered by the CC&Rs. The petition sought to remove a member of this board.

Burden of Proof

The legal obligation on one party in a dispute (in this case, the Petitioner) to provide sufficient evidence to prove their claim.

Bylaws

The set of rules adopted by the Association on June 14, 2000, that govern its internal operations, including meetings and voting rights.

Covenants, Conditions, and Restrictions (CC&Rs)

The primary governing documents for the development, recorded on May 9, 2000, which form an enforceable contract between the Association and each property owner.

Department

The Arizona Department of Real Estate, the state agency authorized to receive and decide petitions from members of homeowners’ associations.

Eligible Votes

A term defined in the Bylaws as the total number of votes that can be lawfully cast, excluding those from members whose voting rights are suspended.

Findings of Fact

The section of the legal decision that outlines the established, undisputed facts of the case based on the hearing evidence.

OAH (Office of Administrative Hearings)

An independent state agency where evidentiary hearings are conducted by Administrative Law Judges.

The final, legally binding command issued by the judge at the conclusion of the decision. In this case, the Order was to deny the petition.

Petitioner

The party who initiates a legal action by filing a petition. In this case, John H. Kelly.

Petition

The formal document filed by the Petitioner on April 29, 2019, with the Department to initiate the hearing process against the Association.

Preponderance of the Evidence

The standard of proof required in this case, meaning that the evidence must be sufficient to convince the judge that the contention is more probably true than not.

Respondent

The party against whom a petition is filed and who must respond to the allegations. In this case, the Cortez Canyon Unit Owners Association.

Special Meeting

A meeting of Association members called for a specific purpose outside of the regularly scheduled meetings. The petition sought to compel a special meeting to remove a board member.

Unit Owner

An individual who holds legal title to a condominium within the Cortez Canyon development and is a member of the Association.

He Gathered 36 Signatures to Oust His HOA Board. Here’s Why Only 13 Counted.

Introduction: The Power and Pitfalls of Community Action

Many homeowners have felt the frustration of trying to enact change within their community, especially when it involves challenging the decisions of a Homeowners Association (HOA) board. It can feel like an uphill battle, but the right to petition and call for special meetings is a cornerstone of community governance.

However, a real-world case involving homeowner John H. Kelly and the Cortez Canyon Unit Owners Association serves as a critical cautionary tale. Mr. Kelly gathered what he believed were more than enough signatures to force a special meeting to remove a board member. Despite his significant effort, his petition failed spectacularly. This article breaks down the key legal and procedural reasons why, offering essential lessons for every homeowner.

1. Not All Signatures Are Created Equal: The Validity Gauntlet

The core of the issue began with a simple numbers game. The Cortez Canyon HOA has 84 units, meaning a petition required signatures from 25%, or 21, of the unit owners to compel a special meeting. Mr. Kelly successfully collected 36 signatures—a number that seemed to guarantee his success.

In a moment of false victory, the association’s property management company at the time, Golden Valley, informed Mr. Kelly that he had indeed secured enough signatures. But this assurance was short-lived. A new management company took over, and after a formal review, the association delivered devastating news: only 13 of the 36 signatures were valid. The petition was dead on arrival.

The association disqualified 23 signatures for specific, documented reasons:

• Non-Owners: Eleven signatures were from renters or other residential occupants who were not the legal owners of the unit.

• Duplicate Units: Six signatures were removed because another signature had already been collected from the same unit, upholding the “one vote per unit” principle.

• Ineligible Owners: Six signatures were from homeowners who were technically owners but were found to be ineligible to vote at the time they signed.

This reveals the petitioner’s first critical, and ultimately fatal, assumption: that the HOA would do the work of verifying his supporters. In reality, the burden of proof was his alone. The legal findings state it plainly: “Neither Petitioner nor his assistants verified if the signatures that were collected belonged to Unit Owners eligible to vote.” From a governance perspective, this initial culling of signatures is where most grassroots community efforts fail.

2. The Fine Print That Disenfranchises: “Good Standing” and Your Right to Vote

Here, we find the kind of boilerplate legal language that is often ignored by homeowners but wielded with immense power by boards. The ineligibility of six homeowners stemmed from a specific clause in the association’s bylaws related to financial standing.

The bylaw states:

“In the event any Unit Owner is in arrears in the payment of any Assessment, monetary penalties or other fees and charges due under the terms of the Condominium Documents for a period of fifteen (15) days, the Unit Owner’s right to vote as a member of the Association shall be automatically suspended…”

This single provision had a profound impact. Six of the signatures Mr. Kelly collected were from homeowners who were more than 15 days late on their dues or fines. Their voting rights were suspended, and their signatures were rendered invalid. This highlights a crucial preparatory step for any petitioner: confidentially requesting a list of members in good standing from the association before collecting signatures, if the governing documents allow, or at minimum, reminding potential signatories to ensure their accounts are current.

3. Process is Paramount: The Signature That Never Was

Facing a losing battle at the administrative hearing, the petitioner made a final argument to salvage his petition. He contended that he had also secured the signature of a member named Jeffrey Law, who owned six separate units. Mr. Kelly argued this single signature should count as six votes, which would have put him over the required threshold.

However, this argument failed due to a simple but fatal procedural error. According to the court’s findings, the signature from Mr. Law was never actually submitted with the petition to the association.

The Administrative Law Judge’s finding was unambiguous: “The signature Petitioner collected from the multiple unit owner, Jeffrey Law, was not a part of the petition received by the Association and therefore was not counted.” This procedural error, while seemingly minor, is an absolute bar to success in administrative law. Unlike a casual disagreement, there is no room for “I meant to” or “I thought I had.”

Conclusion: Knowledge is Power in an HOA

Because the petitioner could only provide 13 valid signatures instead of the required 21, the Administrative Law Judge denied his petition. The HOA was not required to call the special meeting, and the board member remained in place. Mr. Kelly’s story is a powerful reminder that enthusiasm and effort are not enough to navigate the complexities of community governance. The case provides three clear takeaways for any homeowner:

1. Quality Over Quantity: A short, verified list of eligible voters is infinitely more powerful than a long list of unverified names.

2. Bylaws are Your Battlefield: The governing documents contain the rules of engagement. Ignoring them—especially clauses on voter eligibility—is a unilateral surrender.

3. Documentation is Everything: If it wasn’t formally submitted to the correct party, it legally never happened. Your ability to prove submission is as important as the submission itself.

This case is a powerful reminder that enthusiasm and effort aren’t enough. The real question every homeowner should ask is: Do you truly know the rules that govern your rights in your own community?

Case Participants

Petitioner Side

  • John H. Kelly (petitioner)

Respondent Side

  • Jonathan A. Dessaules (attorney)
    Dessaules Law Group
    Appeared on behalf of Respondent
  • Saundra Garcia (board member)
    Cortez Canyon Unit Owners Association
    Called as a witness and testified as Board President
  • Jacob A. Kubert (attorney)
    Dessaules Law Group
    Counsel receiving notice of decision

Neutral Parties

  • Jenna Clark (ALJ)
    Office of Administrative Hearings
  • Judy Lowe (commissioner)
    Arizona Department of Real Estate
    Decision transmitted to Commissioner

Other Participants

  • Jeffery Law (owner)
    Cortez Canyon Unit Owners Association
    Unit owner whose signature Petitioner secured but was not submitted to the Association